The plaintiff, [name of plaintiff], claims ownership of a copyright and seeks damages against the defendant, [name of defendant], for copyright infringement. The defendant denies infringing the copyright [and] [contends that the copyright is invalid] [asserts an affirmative defense]. To help you understand the evidence in this case, I will explain some of the legal terms you will hear during this trial.
DEFINITION OF COPYRIGHT
The owner of a copyright has the right to exclude any other person from reproducing, distributing, performing, displaying, or preparing derivative works from the work covered by copyright for a specific period of time.
A copyrighted work can be a literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, or computer program.
Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries cannot themselves be copyrighted.
The copyrighted work must be original. An original work that closely resembles other works can be copyrighted so long as the similarity between the two works is not the result of copying.
[COPYRIGHT INTERESTS]
[The copyright owner may [transfer] [sell] [convey] to another person all or part of the owner’s property interest in the copyright, that is, the right to exclude others from reproducing, distributing, performing, displaying or preparing derivative works from the copyrighted work. To be valid, the [transfer] [sale] [conveyance] must be in writing and signed by the transferor. The person to whom a right is transferred is called an assignee.]
or
[The copyright owner may agree to let another person exclusively reproduce, distribute, perform, display, use, or prepare a derivative work from the copyrighted work. To be valid, the [transfer] [sale] [conveyance] must be in writing and signed by the transferor. The person to whom this right is transferred is called an exclusive licensee. The exclusive licensee has the right to exclude others from [describe the rights granted in the license].]
[HOW COPYRIGHT IS OBTAINED]
[Copyright automatically attaches to a work the moment the work is fixed in any tangible medium of expression. The owner of the copyright may apply to register the copyright by completing a registration form and depositing a copy of the copyrighted work with the Copyright Office. After determining that the material deposited constitutes copyrightable subject matter and that certain legal and formal requirements are satisfied, the Register of Copyrights registers the work and issues a certificate of registration to the copyright owner.]
PLAINTIFF’S BURDEN OF PROOF
In this case, the plaintiff, [name of plaintiff], contends that the defendant, [name of defendant], has infringed the plaintiff’s copyright. The plaintiff has the burden of proving by a preponderance of the evidence that the plaintiff is the owner of the copyright, that the defendant copied original expression from the copyrighted work, and that the defendant caused the infringement. Preponderance of the evidence means that you must be persuaded by the evidence that it is more probably true than not true that the copyrighted work was infringed.
PROOF OF COPYING
To prove that the defendant copied the plaintiff’s work, the plaintiff may use direct or indirect evidence. Direct evidence includes an admission that the defendant copied the plaintiff’s work. Indirect evidence is evidence showing that the defendant had access to the plaintiff’s copyrighted work and that there are substantial similarities between the defendant’s work and the plaintiff’s copyrighted work; or that there are striking similarities between the defendant’s work and the plaintiff’s copyrighted work that raises the inference of access.
The plaintiff must also prove that the defendant’s copying of the copyrighted work was substantial. In determining whether the defendant’s copying of the copyrighted work was substantial, you may consider how important the copied portion was to the copyrighted work as a whole.
LIABILITY FOR INFRINGEMENT
One who causes a copyrighted work to be [reproduced] [publicly distributed] [publicly performed] [publicly displayed] [the basis of a derivative work] without authority from the copyright owner during the term of the copyright infringes the copyright.
[A person may be liable for another person’s infringement d by [vicariously infringing] [contributorily infringing].]
[VICARIOUS INFRINGEMENT]
[A person is liable for copyright infringement by another if the person has profited directly from the infringing activity and had the right and ability to supervise or control the infringing activity, whether or not the person knew of the infringement.]
[CONTRIBUTORY INFRINGEMENT]
[A person is liable for copyright infringement by another if the person knows or should have known of the infringing activity and [induces] [or] [materially contributes to] the activity.]
[DEFENSES TO INFRINGEMENT]
[The defendant contends that there is no copyright infringement. There is no copyright infringement when [the defendant’s work is the result of independent creation, coincidence, or prior common source] [the defendant made fair use of the copyrighted work by reproducing copies for purposes such as criticism, comment, news reporting, teaching, scholarship, or research] [the plaintiff abandoned ownership of the copyrighted work] [the plaintiff misused the copyright by requiring its exclusive use or preventing the development of competing products] [the plaintiff granted the defendant an express license to [use] [copy] [other] the plaintiff’s copyrighted work] [the plaintiff granted the defendant an implied license to use the plaintiff’s copyrighted work] [the defendant, as an owner of a copy of the plaintiff’s copyrighted work, resold that copy after the plaintiff made the first sale].]
Comment
See generally 17 U.S.C. §§ 101-1511.
Regarding the “copyright interests” section of this instruction, when the entire bundle of rights is transferred, the person to whom the rights are transferred is called an assignee. When fewer than all rights are transferred, the person is an exclusive licensee. Gardner v. Nike, Inc., 279 F.3d 774, 778 (9th Cir. 2002). The examples of fair use given in Instruction 17.1 are representative, and other uses may qualify as fair use. See 17 U.S.C. § 107; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007) ("The fair use defense permits the use of copyrighted works without the copyright owner’s consent under certain situations. The defense encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law’s goal of protecting creators’ work product."); id. at 1163 ("We must be flexible in applying a fair use analysis; it is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis” (citation omitted)).
Regarding the “How Copyright Is Obtained” section of this instruction, “‘registration . . . has been made’ within the meaning of 17 U.S.C. § 411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.” Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 892 (2019).
Regarding the requirement that copying of the plaintiff’s work be substantial, “[f]or an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement. This means that even where the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial.” Newton v. Diamond, 388 F.3d 1189, 1192-93 (9th Cir. 2004) (citations omitted). “[W]e have consistently applied the de minimis principle to determine whether a work is infringing by analyzing the quantity and quality of the copying to determine if the allegedly infringing work is a recognizable copy of the original work, in other words, whether the works are substantially similar.” Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. Sept. 9, 2021). A use is considered de minimis, and therefore not substantial, “if it is so meager and fragmentary that the average audience would not recognize the appropriation.” Newton, 388 F.3d at 1193 (quoting Fisher v. Dees, 794 F.2d 432, 434 n.2 (9th Cir. 1986)).
Copying may also be considered de minimis when the use of the work is so fleeting or trivial that “a reasonable jury could not conclude that an average audience would recognize an appropriation of the [plaintiff’s] composition,” therefore rendering the works substantially dissimilar. Bell, 12 F.4th at 1078 (quoting VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 886-87 (9th Cir. 2016). Unless the copying of the protected work is so de minimis as to “be non-recognizable as a copy,” the “[w]holesale copying or reproduction of another’s protected work . . . by definition cannot be de minimis copying.” Id. at 1078-79.
Regarding the requirement that the defendant cause the violation of one of the exclusive rights in copyright under 17 U.S.C. § 106, where the defendant hosts third party content on its website, the Ninth Circuit has referred to the causation element as the requirement that the defendant engage in “volitional conduct.” “[T]o demonstrate volitional conduct, a [plaintiff] must provide some evidence showing the alleged infringer exercised control (other than by general operation of its website); selected any material for upload, download, transmission, or storage; or instigated any copying, storage, or distribution of its [work].” VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 732 (9th Cir. 2019) (brackets, internal quotation marks, and citation omitted). In this context, “volitional conduct” “does not really mean an ‘act of willing or choosing’ or ‘an act of deciding,’ but merely the unremarkable proposition that proximate causation historically underlies copyright infringement liability no less than other torts.” Bell, 12 F.4th at 1081 (internal quotation marks and citation omitted). “[A] website or service that provides only a platform for third-party users to upload, download, and share content, i.e., merely using the platform as a vehicle, has not engaged in volitional conduct in this sense, because it is the users who cause infringement.” Id.
Regarding contributory infringement, a party is liable for contributory infringement where the party “(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 795 (9th Cir. 2007). The inducement theory has “four elements: (1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1032 (9th Cir. 2013).
Revised March 2024
Copyright is the exclusive right to copy. This right to copy includes the exclusive right[s] to [, or authorize others to]:
[1.] [reproduce the copyrighted work in [copies] [phonorecords];]
[2.] [[recast, transform, or adapt the work, that is] prepare derivative works based upon the copyrighted work;]
[3.] [distribute [copies] [phonorecords] of the copyrighted work to the public by [sale or other transfer of ownership] [or by] [rental or lease or lending];]
[4.] [perform publicly a copyrighted [literary work] [musical work] [dramatic work] [choreographic work] [pantomime work] [motion picture] [or] [specify other audiovisual work];]
[5.] [display publicly a copyrighted [literary work] [musical work] [dramatic work] [choreographic work] [pantomime work] [pictorial work] [graphic work] [sculptural work] [individual image of a motion picture] [or] [specify other audiovisual work]; and]
[6.] [perform a sound recording by means of digital audio transmission].
It is the owner of a copyright who may exercise [this] [these] exclusive right[s]. The term “owner” includes [the author of the work] [an assignee] [an exclusive licensee]. In general, copyright law protects against [reproduction] [adaptation] [public distribution] [public performance] [public display] of identical or substantially similar copies of the owner’s copyrighted work without the owner’s permission. An owner may enforce the[se] right[s] to exclude others in an action for copyright infringement.
Comment
This instruction identifies the types of rights involved in the term “copyright.” See Kalantari v. NITV, Inc., 352 F.3d 1202, 1207-08 (9th Cir. 2003) (“Upon obtaining a copyright, an author automatically acquires certain rights that are inherent in the very nature of a copyright. Specifically, the copyright owner obtains the six exclusive rights of copyright … as well as the right to transfer any or all of those rights….” (citation omitted)).
There are exceptions to these “exclusive” rights. See, e.g., 17 U.S.C. §§ 107–122. For definitions of various terms used in this instruction, including phonorecords and digital transmission, see 17 U.S.C. § 101.
The work[s] [identify the works at issue] involved in this trial are known as:
[1.] [literary works [in which words, numbers, or other verbal or numerical symbols are expressed];]
[2.] [musical works, including any accompanying words;]
[3.] [dramatic works, including any accompanying music;]
[4.] [pantomimes;]
[5.] [choreographic works;]
[6.] [pictorial works] [graphic works] [sculptural works] [;] [, such as two- and three-dimensional works of fine, graphic or applied art, photographs, prints, and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans;]
[7.] [motion pictures] [and other audiovisual works] [in which a series of related images convey an impression of motion when shown in succession];]
[8.] [sound recordings] [;] [, which are works that result from fixation of a series of musical, spoken, or other sounds;]
[9.] [architectural works] [;] [, which are building designs as embodied in buildings, architectural plans, drawings, or other modes of expression;]
[10.] [computer programs] [that is, sets of statements or instructions to be used directly or indirectly in a computer to bring about a certain result].]
You are instructed that a copyright may be obtained in [identify the work[s] at issue].
[[This] [These] work[s] can be protected by copyright law. Only that part of the work[s] consisting of original works of authorship [fixed] [produced] in any tangible [medium] [form] of expression from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, is protected by the Copyright Act.]
[Copyright protection for an original work of authorship does not extend to any [idea] [procedure] [process] [system] [method of operation] [concept] [principle] [discovery], regardless of the form in which it is described, explained, illustrated, or embodied.]
Comment
Generally, whether a subject matter is copyrightable is a question of law to be determined by the court. This instruction is designed to inform the jury that the court has determined the subject matter to be appropriately copyrightable.
The court may wish to supplement this instruction by providing further instructions addressing these additional terms. For example, the term “literary works” “does not connote any criterion of literary merit or qualitative value: it includes catalogs, directories and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves.” H.R. Rep. No. 94-1476, at 54 (1976).
The Ninth Circuit has recognized that characters in comic books, television or motion pictures can be afforded copyright protection when they satisfy a three-part test. DC Comics v. Towle, 802 F.3d 1012, 1021 (9th Cir. 2015) (Batmobile). The character (1) must generally have physical as well as conceptual qualities; (2) must be sufficiently delineated to be recognizable as the same character whenever it appears by displaying consistent, identifiable character traits and attributes, although it need not have a consistent appearance; and (3) must be especially distinctive and contain some unique elements of expression. Id.
Configurable works, like kinetic and manipulable sculptural works, can be sufficiently fixed in a tangible medium of expression so as to be afforded copyright protection. Tangle, Inc. v. Aritzia, Inc., 125 F.4th 991, 996 (9th Cir. 2025).
For additional definitions of terms used in this instruction, see 17 U.S.C. § 101 (defining numerous terms used here).
The United States Supreme Court has ruled that no copyright protection is available for material authored by a judge or a legislative body acting in an official capacity. See Georgia v. Public Resources, 590 U.S. 255 (2010).
Revised March 2025
Only the expression of an idea or fact can be copyrighted. The underlying ideas contained in the work, such as procedures, processes, systems, methods of operation, concepts, principles, or discoveries, or the underlying facts contained in the work, such as names and addresses in a telephone directory, cannot be copyrighted.
Comment
“No author may copyright his ideas or the facts he narrates.” Harper & Row Publishers, Inc. v. Nat. Enters., 471 U.S. 539, 556 (1985). “Copyrights protect ‘expression’ but not the ‘ideas’ that lie behind it.” Google LLC v. Oracle Am., Inc.,141 S. Ct. 1183, 1196 (2021); see also 17 U.S.C. § 102(b) (“In no case does copyright protect[] . . . any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . described, explained, illustrated, or embodied in [the copyrighted] work.”).
Although “facts are not copyrightable[,] . . . compilations of facts generally are.” Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991).
Revised March 2024
Anyone who copies original expression from a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright.
On the plaintiff’s copyright infringement claim, the plaintiff has the burden of proving by a preponderance of the evidence that:
First, the plaintiff is the owner of a valid copyright; and
Second, the defendant copied original expression from the copyrighted work.
If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff. If, on the other hand, you find that the plaintiff has failed to prove either of these elements, your verdict should be for the defendant.
Comment
The elements in this instruction are explained in Instructions 17.6 (Copyright Infringement—Ownership of Valid Copyright—Definition), 17.14 (Copyright Infringement—Originality), 17.17 (Copying—Access and Substantial Similarity), 17.18 (Copyright Infringement—Copying—Access Defined), and 17.19 Substantial Similarity—Extrinsic Test; Intrinsic Test). Copying and improper appropriation are issues of fact for the jury. See Three Boys Music Corp v. Bolton, 212 F.3d 477, 481-82 (9th Cir. 2000).
The elements of copyright infringement cited in this instruction were stated in Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991) (“To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”); see also Seven Arts Filmed Entm’t Ltd. v. Content Media Corp., 733 F.3d 1251, 1254 (9th Cir. 2013); Great Minds v. Office Depot, 945 F.3d 1106, 1110 (9th Cir. 2019); Aquarian Found., Inc. v. Lowndes, 127 F.4th 814, 821 (9th Cir. 2025) (confirming that ownership of a copyright may be bequeathed by will under both the 1909 and 1976 Copyright Acts).
The Ninth Circuit considers the word “copying” as “shorthand” for the various activities that may infringe a copyright owner’s six exclusive rights described at 17 U.S.C. § 106. Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1153-54 (9th Cir. 2012).
To establish the defendant’s liability on a direct infringement theory, the plaintiff must show that the defendant was the cause of the infringement. See Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017) (“[W]here it is clear that infringement has occurred, courts must determine ‘who is close enough to the [infringing] event to be considered the most important cause’” (citation omitted)); see also VHT Inc. v. Zillow Grp., Inc., 918 F.3d 723, 732 (9th Cir. 2019) (“‘[D]irect infringement requires ‘active’ involvement.”). If causation is contested, it may be appropriate to modify this instruction to explicitly include causation as an element. In VHT, Inc. v. Zillow Group, Inc., the Ninth Circuit provided an extensive discussion of the causation requirement in a case involving alleged copyright infringement of website images. 918 F.3d at 731-32 (“[T]here must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner.”).
In Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit worded the elements slightly differently: “proof of copyright infringement requires [the plaintiff] to show: (1) that he owns a valid copyright in [the work]; and (2) that [the defendant] copied protected aspect of the work . . . The second prong of the infringement analysis contains two separate components: ‘copying’ and ‘unlawful appropriation,’” id. at 1064 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
Revised March 2025
The plaintiff is the owner of a valid copyright in [identify work[s] allegedly infringed] if the plaintiff proves by a preponderance of the evidence that:
1. the plaintiff’s work is original; and
2 the plaintiff [is the author or creator of the work] [received a transfer of the copyright] [received a transfer of the right to [specify right transferred, e.g., make derivative works, publicly perform the work, etc.]].
Comment
Under the Copyright Act, the party claiming infringement must show ownership. See Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003) (“Ownership of the copyright is ... always a threshold question.” (quoting Topolos v. Caldewey,698 F.2d 991, 994 (9th Cir. 1983))).
Under the Copyright Act, no copyright infringement exists if an “owner of a copy of a computer program . . . mak[es] . . . another copy or adaptation of that computer program” for certain purposes, such as when is an “essential step” in using the program. 17 U.S.C. § 117(a)(1). To determine whether a party is an “owner of a copy” of a computer program, the court looks to whether the party has “sufficient incidents of ownership” over the copy of the software program. Oracle Int’l Corp. v. Rimini St., Inc., 123 F.4th 986, 997 (9th Cir. 2024) (deciding this question by reviewing “the totality of the parties’ agreement”); see 17 U.S.C. § 202 (“Ownership of a copyright . . . is distinct from ownership of any material object in which the work is embodied.”).
Revised March 2025
A copyright owner may obtain a certificate of registration from the Copyright Office.
The evidence in this case includes Exhibit ___, a certificate of copyright registration from the Copyright Office. If you find that this certificate was made within five years after first publication of the plaintiff’s work, you must presume that there is a valid copyright in [identify the work in question] and presume to be true the facts stated in the certificate including [state specifics of the certificate relevant to the case, e.g., that plaintiff’s work is the original and copyrightable work of the author and that the plaintiff owns the copyright in that work],which I explain in Instructions [insert instruction numbers relevant to elements of plaintiff’s burden].The defendant has the burden of disproving these facts.
If you find that the evidence presented by [state the name of defendant(s)] disproves either the validity of the copyright or any of the facts stated in the registration certificate, you may find that [state the name of plaintiff(s)] has failed to show ownership of a copyrightable work.
Comment
Under the Copyright Act, the party claiming infringement must show ownership of a copyrightable work. See Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003) (“Ownership of the copyright is … always a threshold question.” (quoting Topolos v. Caldewey,698 F.2d 991, 994 (9th Cir. 1983))), abrogated on other grounds by Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (Unicolors II), 595 U.S. 178 (2022).
This instruction should be given if the plaintiff submits a copyright registration certificateand there is a dispute as to its validity or the facts stated in the certificate. See 17 U.S.C. § 410(c) (“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”)
I “[I]f a copyright holder secures a registration certificate within five years after first publication, such certificate will constitute prima facie evidence of both the validity of the copyright and the facts stated in the certificate.” Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612, 619 (9th Cir. 2010) (citing 17 U.S.C. § 410(c)), abrogated on other grounds by Fourth Est.Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886-87 (2019). Such a registration certificate entitles the plaintiff “to a rebuttable presumption” of a valid copyright, Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1075 (9th Cir. 2000), and the burden shifts to the defendant to prove that the plaintiff lacks a valid copyright in the work or to prove the falsity of any “fact[] set forth in the copyright certificate,” United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011); see also Transgo Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1019 (9th Cir. 1985) (“Under both the Copyright Act of 1909 and the Copyright Act of 1976, registration by theCopyright Office is prima facie evidence of copyrightability. This presumption shifts the burden of proof to the challenging party to demonstrate why the item in question is not copyrightable.”). For a definition of publication, see 17 U.S.C. § 101. For a definition of when a “registration of the copyright claim has been made in accordance with [the Copyright Act],” see Fourth Est. Pub. Benefit Corp., 139 S. Ct. at 886-87.
The Copyright Act contains a safe harbor, 17 U.S.C. § 411(b)(1)(A), which provides that a certificate of registration is valid even though it contains inaccurate information, as long as the copyright holder did not “knowingly transmit[] inaccurate material facts to the Register of Copyrights” when it submitted its application for the certificate of registration. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (Unicolors III), 52 F.4th 1054, 1064 (9th Cir. 2022). The safe harbor “does not distinguish between a mistake of law and a mistake of fact. Lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration.” Id. at 1063 (quoting Unicolors II, 595 U.S. at 182). A court need not accept a copyright holder’s claim that it was unaware of the relevant copyright law. See Unicolors II, 595 U.S. at 187. Instead, “[c]ircumstantial evidence, including the significance of the legal error, the complexity of the relevant rule, the applicant’s experience with copyright law, and other such matters, may also lead a court to find that an applicant was actually aware of, or willfully blind to, legally inaccurate information”; moreover, “willful blindness may support a finding of actual knowledge.” Id., at 187-88.
Where a copyright holder has registered a derivative work, the certificate of registration for the derivative work does not establish a prima facie case of valid copyright in the underlying work (or, equivalently, “create[] a presumption of validity of the copyright of the underlying work”). Cooling Sys. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 490 (9th Cir. 1985) (derivative work). Likewise, where a copyright holder has registered a compilation, the certificate of registration for the compilation does not establish a prima facie case of copyright validity with respect to the component works. See Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 203 (9th Cir. 1989) (“[A] copyrightable compilation [can] consist entirely of matter which is not itself copyrightable.”).
Supplemental Instruction
[If the certificate was made more than five years after first publication of the plaintiff’s work, use the following in place of the second and third paragraphs of the instruction. If the date of first publication is in dispute, add the following at the end of the instruction.]
If you find that this certificate was made more than five years after first publication of the plaintiff’s work, you are instructed that the certificate is [state the evidentiary weight that the court has accorded to the certificate] to establish that there is a valid copyright in [identify the work in question] and to establish the facts stated in the certificate including [state specifics of the certificate relevant to the case, e.g., that plaintiff’s work is the original and copyrightable work of the author and that the plaintiff owns the copyright in that work], which I explain in Instructions [insert instruction numbers relevant to elements of plaintiff’s burden].
Comment
See 17 U.S.C. § 410(c) (“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”).
Revised March 2024
The creator of an original work is called the author of that work. An author originates or “masterminds” the original work, controlling the whole work’s creation and causing it to come into being.
Others may help or may make valuable or creative contributions to a work. However, such [a contributor cannot be the author of the work unless that contributor] [contributors cannot be the authors of the work unless they] caused the work to come into being. One must translate an idea into a fixed, tangible expression in order to be the author of the work. Merely giving an idea to another does not make the giver an author of a work embodying that idea.
Comment
“Authorship is a question of fact.” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1086 (9th Cir. 1989) (citing Del Madera Props. v. Rhodes & Gardner, Inc., 820 F.2d 973, 980 (9th Cir. 1987)).
For other instructions on particular types of authorship interests, see Instructions 17.9 (Copyright Interests—Joint Authors), 17.10 (Copyright Interests—Authors of Collective Works), and 17.11 (Copyright Interests—Work Made for Hire by Employee). For the requirement of an “original” work, see Instruction 17.14 (Copyright Infringement—Originality).
Copyright in a work “vests initially in the author or authors” of a work. 17 U.S.C. § 201(a). “As a general rule, the author is the party who actually creates the work .…” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989). Integral to the concept of authorship is the translation of an idea into a fixed tangible medium of expression. See S.O.S., 886 F.2d at 1087 (quoting Cmty. for Creative Non-Violence, 490 U.S. at 737); see also 17 U.S.C. § 102(b) (no copyright protection for ideas). A work is “fixed” in a tangible medium when its authorized embodiment occurs in a concrete form that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2010) (quoting 17 U.S.C. § 101) (a photographic image stored in a computer’s server is fixed in a tangible medium of expression). Authorship is a designation for the “originator” of the work, who “causes something to come into being.” Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000). In Aalmuhammed, the court noted that the Supreme Court had defined “author” as the person “to whom the work owes its origin and who superintended the whole work, the ‘master mind.’” 202 F.3d at 1233 (citing Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 61 (1884)). The Burrow-Giles definition “is still good law.” Id.
A copyright owner is entitled to exclude others from copying a joint work. A joint work is a work prepared by two or more authors. At the time of the joint work’s creation, a joint work must have two or more authors, and:
1. each author must have made a substantial and valuable contribution to the work;
2. each author must have intended that [his] [or] [her] contribution be merged into inseparable or interdependent parts of a unitary whole; and
3. each author must have contributed material to the joint work which could have been independently copyrighted.
Each author of a joint work shares an undivided interest in the entire joint work. A copyright owner in a joint work may enforce the right to exclude others in an action for copyright infringement.
In deciding whether parties intended their contributions to be merged [in element 2, above], you may consider whether the parties signed a written agreement stating that the copyright in the work is to be jointly owned. If there is no such agreement, you may consider whether:
a. [both] [each of the] parties exercised control over the work;
b. [both] [each of the] parties’ actions showed they shared the intent to be co-authors when they were creating the work, for instance by publicly stating that the work was their shared project; and
c. the audience-appeal of the work depends on the contribution of each party so that the share of each party’s contribution to the work’s success cannot be appraised.
In making a substantial and valuable contribution to a work, each author’s contribution to the joint work need not be equal.
A written agreement stating the copyright in the work is to be jointly owned may show that each author of a joint work intended that [his] [or] [her] contribution be merged into inseparable or interdependent parts of a unitary whole.
In contributing material to the joint work that could have been independently copyrighted, each author’s contribution should be entitled to copyright protection without the contributions by the other author[s].
Comment
Whether a work is a joint work, rendering a party a joint author, is often a question of fact for the jury to determine. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989) (reversing summary judgment determination of joint authorship). But see Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 967-70 (9th Cir. 2008) (affirming summary judgment determination of joint authorship); Aalmuhammed v. Lee, 202 F.3d 1227, 1236 (9th Cir. 2000) (same). This instruction may also be inappropriate for use in a case involving joint authorship under the 1909 Copyright Act. See Richlin, 531 F.3d at 967 (explaining that 1909 Copyright Act did not expressly mention or define joint authorship but that joint authorship claims may be analyzed under the rubric of the 1976 Copyright Act because it incorporated common law principles that were well-established under the 1909 Act).
Although Aalmuhammed requires that a joint author be the work’s “master mind,” 202 F.3d at 1234, the fact that the joint work concept contemplates two or more co-authors implies that a work may have more than one “master mind,” as long as each makes an independently copyrightable contribution. Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990). The fact that someone has contributed copyrightable material to a joint project does not mean that person is a sole author of that person’s copyright expression. Garcia v. Google, Inc., 786 F.3d 733, 742 (9th Cir. 2015).
While either author of a joint work may enforce the right to exclude others, each author of a joint work also “has the independent right to use or license the copyright subject only to a duty to account for any profits he earns from the licensing or use of the copyright.” Ashton-Tate Corp., 916 F.2d at 522 (9th Cir. 1990). Accordingly, a joint copyright owner may not exclude other joint owners or persons who have a license from another joint owner.
For definitions relevant to this instruction, see 17 U.S.C. §§ 101 (defining “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”), 106 (listing exclusive rights of copyright), and 501 (copyright infringement). The initial ownership rights in a joint work under the 1976 Copyright Act are found at 17 U.S.C. § 201(a) (“authors of a joint work are coowners of the copyright”); see also Pye v. Mitchell, 574 F.2d 476, 480 (9th Cir. 1978) (co-authors automatically hold undivided interest in the whole).
Elements reflected in this instruction are drawn from: Ashton-Tate Corp., 916 F.2d at 521 (“Even though this issue is not completely settled in the case law, our circuit holds that joint authorship requires each author to make an independently copyrightable contribution [to the joint work].”); S.O.S., 886 F.2d at 1087 (“[O]ne must supply more than mere direction or ideas: one must ‘translate [ ] an idea into a fixed, tangible expression entitled to copyright protection [to be a joint author.]’” (quoting Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730, 737 (1989))); and Pye, 574 F.3d at 480.
The elements suggested in the paragraph supplementing the second element of the instruction are derived from Aalmuhammed, 202 F.3d at 1234-35 (noting the above as “several factors [that] suggest themselves as among the criteria for joint authorship, in the absence of contract” …control “in many cases is the most important factor”). See also Richlin, 531 F.3d at 968 (analyzing joint authorship under criteria set forth in Aalmuhammed).
A work can be jointly owned by assignment of an undivided interest, such as transfer of copyright from sole author to two or more transferees. This simply renders the work jointly owned, but does not make it a joint work, for which this instruction is appropriate. Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1984).
An owner of a copyright in a collective work is entitled to exclude others from copying it. A collective work is a work [such as [a newspaper, magazine, or periodical issue] [anthology] [encyclopedia]] in which a number of contributions, constituting separate and independent works in themselves, are selected, coordinated or arranged into an original, collective whole. The person who assembles the contributions of independent works into the collective work is an author and is entitled to copyright.
Copyright in a collective work is distinct from copyright in the separate contributions to a collective work. In the absence of an express transfer of copyright in the separate contribution, the copyright owner of the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
A copyright owner of a collective work may enforce the right to exclude others from the work’s original selection, coordination, or arrangement in an action for copyright infringement.
Comment
See 17 U.S.C. §§ 101 (defining “collective work”), 201(c) (stating that, in absence of express copyright transfer by contributor to author of collective work, it is presumed that copyright owner of collective work acquires “only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series”); Jarvis v. K2 Inc., 486 F.3d 526, 530-32 (9th Cir. 2007) (analyzing derivative versus collective works and holding that “collective work privilege” does not apply to derivative works). Whether a contribution to a collective work has been reproduced and distributed as part of a “revision” depends on how it is presented and how it is perceived by users in context. N.Y. Times Co., Inc. v. Tasini, 533 U.S. 483, 499-500 (2001) (considering use of contributions to periodicals and other collective works in databases).
Several sections of the Copyright Act concern the placement of the copyright notice on a collective work and on the contributions to the collective work. See 17 U.S.C. §§ 401–406. Regarding copyright notice, see Abend v. MCA, Inc., 863 F.2d 1465, 1469 (9th Cir. 1988) (adopting Second Circuit’s conclusion that copyright notice on collective work is sufficient to obtain valid copyright on behalf of author of contributed work when publication rights are limited and when there are no facts to suggest that author intended to donate work to public), aff’d, 495 U.S. 207 (1990). A different treatment applies if a collective work is covered by the Berne Convention Implementation Act, 17 U.S.C. § 405(a) (e.g., works distributed after March 1, 1989). See Golan v. Holder, 132 S. Ct. 873, 904 (2012) (noting that in 1989 United States adopted Berne Convention and abolished copyright notice requirement); see also Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054, 1078 (9th Cir. 2022)(discussing foreign copyrights under Berne Convention).
A copyright owner is entitled to exclude others from copying a work made for hire.
A work made for hire is one that is prepared by an employee and is within the scope of employment.
A work is made for hire within the scope of employment if:
1. it is the kind of work the employee is employed to create;
2. it occurs substantially within the authorized time and space limits; and
3. it is made, at least in part, for the purpose of serving the employer.
The employer is considered to be the author of the work and owns the copyright [unless the employer and employee have agreed otherwise in writing].
A copyright owner of a work made for hire may enforce the right to exclude others in an action for copyright infringement.
Comment
This instruction may not be appropriate in cases in which a copyright was obtained under the 1909 Copyright Act. For such cases, see Dolman v. Agee, 157 F.3d 708, 711-12 (9th Cir. 1998) (applying presumption of work for hire under 1909 Copyright Act).
See 17 U.S.C. §§ 101 (defining work for hire), 201(b) (describing rights in work for hire). Congress used the words “employee” and “employment” in 17 U.S.C. § 101 to describe the conventional relationship of employer and employee. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989); U.S. Auto Parts Network, Inc. v. Parts Geeks, LLC, 692 F.3d 1009, 1015 (9th Cir. 2012). “An employment (or commissioning) relationship at the time the work is created is a condition” for creation of a work for hire. Urantia Found. v. Maaherra, 114 F.3d 955, 961 (9th Cir. 1997). Absent a written agreement to the contrary, the employer is the author of a work made for hire within the scope of employment. U.S. Auto Parts, 692 F.3d at 1017 (explaining when work is made for hire within scope of employment); Aquarian Found., Inc. v. Lowndes, 127 F.4th 814, 820 (9th Cir. 2025) (holding works authored by the founder and head of a church and which were not part of the “traditional, hierarchical relationships in which the employee created the work” as part of the church’s “regular course of business” did not constitute “works for hire”).
Under copyright law, a work for hire clause in a contract, or a work for hire relationship, vests all rights of authorship in the employer or “person for whom the work was prepared.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1144 (9th Cir. 2003) (quoting 17 U.S.C. § 201) (holding that grant of royalties to creator of work for hire, absent express contractual provision to contrary, does not create beneficial ownership interest in that creator).
While all works created during the course of employment are works for hire, specially commissioned works prepared by independent contractors are considered works for hire only if they fall within certain categories of eligible works and the parties agree in writing that the works will become made for hire. See 17 U.S.C. § 101 (stating that “specifically ordered or commissioned” work made for hire exists only in nine specific categories); Warren, 328 F.3d at 1140 n.4.
This instruction does not address specially commissioned works created outside of an employment relationship.
Supplemental Instruction
[If the issue of the employment status of the work’s creator will be decided by the jury,insert the following after the second paragraph of the instruction.]
You should consider the following factors in determining whether the creator of the work in this case was an employee of the [name of party identified]:
(1) The skills required to create the work. The higher the skills required, the more likely the creator was an independent contractor rather than an employee.
(2) The source of the tools or instruments used to create the work. The more the creator had to use his or her own tools or instruments, the more likely the creator was an independent contractor rather than an employee.
(3) The location of where the work was done. The less the creator worked at [name of alleged employer’s work site], the more likely the creator was an independent contractor rather than an employee.
(4) Applicability of employee benefits, like a pension plan or insurance. The more the creator is covered by the benefit plans [name of alleged employer] offers to other employees, the less likely the creator was an independent contractor rather than an employee.
(5) Tax treatment of the creator by [name of alleged employer]. If [name of alleged employer] reported to tax authorities payments to the creator with no withholding or by use of a Form 1099, the more likely the creator was an independent contractor rather than an employee.
(6) Whether the creator had discretion over when and how long to work. The more the creator can control his or her work times, the more likely the creator was an independent contractor rather than an employee.
(7) Whether [name of alleged employer] has the right to assign additional projects to the creator. The more the creator could refuse to accept additional projects unless additional fees were paid, the more likely the creator was an independent contractor rather than an employee.
(8) Duration of the relationship between the parties. The more the creator worked on a project basis for [name of alleged employer], the more likely the creator was an independent contractor rather than an employee.
(9) The method of payment. The more the creator usually works on a commission or onetime-fee basis, the more likely the creator was an independent contractor rather than an employee.
(10)Whether the creator hired (or could have hired) and paid his or her own assistants. The more the creator hires and pays for his or her own assistants, the more likely the creator was an independent contractor rather than an employee.
(11)Whether [name of alleged employer] is a business. If the party that did the hiring is not a business, it is more likely that the creator was an independent contractor rather than an employee.
Comment
This eleven-factor test employing common-law agency principles to determine whether the creator of a work was an employee or an independent contractor was identified by the Supreme Court. See Cmty. for Creative Non-Violence, 490 U.S. at 751-52. No single factor is determinative. Id. at 752. For a discussion of the weight of any of the eleven Reid factors, see JustMed, Inc. v. Byce, 600 F.3d 1118, 1125-28 (9th Cir. 2010), and Aymes v. Bonelli, 980 F.2d 857, 860-64 (2d Cir.1992).
Revised March 2025
[In this case, the [plaintiff] [defendant] does not claim to be the [author] [creator] [initial owner] of the copyright at issue. Instead, the [plaintiff] [defendant] claims that it received the copyright by virtue of assignment from the work’s [author] [creator] [initial owner] so that the [plaintiff] [defendant] is now the assignee of the copyright.]
A copyright owner may [transfer] [sell] [convey] to another person all or part of the owner’s property interest in the copyright; that is, the right to exclude others from copying the work. The person to whom the copyright is [transferred] [sold] [conveyed] becomes the owner of the copyright in the work.
To be valid, the [transfer] [sale] [conveyance] must be in a writing signed by the transferor. The person to whom this right is transferred is called an assignee. [The assignee may enforce this right to exclude others in an action for copyright infringement.]
Comment
When the owner of the copyright is not the author, the first bracketed paragraph may be appropriate.
“A ‘transfer of copyright ownership’ is an assignment . . . .” 17 U.S.C. § 101. Ownership of a copyright may be transferred in whole or in part by any means of conveyance. See 17 U.S.C. § 201(d)(1).
Transfer of a copyright, other than by operation of law, must be reflected by a written instrument, signed by the owner of the rights conveyed. See 17 U.S.C. § 204(a) (“A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”); Konigsberg Int’l Inc. v. Rice, 16 F.3d 355, 356-57 (9th Cir. 1994) (noting that § 204(a) provides that “a transfer of copyright is simply ‘not valid’ without a writing”). “No magic words must be included in a document to satisfy § 204(a). Rather, the parties’ intent as evidenced by the writing must demonstrate a transfer of the copyright.” Radio Television Espanola S.A. v. New World Entm’t Ltd., 183 F.3d 922, 927 (9th Cir. 1999). “Section 204’s writing requirement is not unduly burdensome; it necessitates neither protracted negotiations nor substantial expense. The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn’t have to be the Magna Charta; a one-line pro forma statement will do.” Effects Associates, Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990). Both the 1909 and 1976 Copyright Acts allow for the transfer of a copyright by will. Aquarian Found., Inc. v. Lowndes, 127 F.4th 814, 821 (9th Cir. 2025)(citing 17 U.S.C. § 42 (repealed) (providing that copyrights “may be bequeathed by will”); 17 U.S.C. § 201(d)(1) (providing that copyrights “may be bequeathed by will or pass as personal property by the applicable laws of intestate succession”)).
Some case law suggests that the writing must be executed “more or less” contemporaneously with the agreement to transfer ownership. See Koninsberg, 16 F.3d at 356-57. However, this suggestion has been rejected as dicta, see Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 n.1 (9th Cir. 1996), and the weight of authority holds that “[i]f an oral transfer of a copyright license is later confirmed in writing, the transfer is valid,” Vallente-Kritzer Video v. Pinckney, 881 F.2d 772, 775 (9th Cir. 1989); see also Magnuson, 85 F.3d at 1428 (“Like the 1976 Copyright Act, the Copyright Act of 1909 provided that assignment of a copyright had to be made in writing. However, case law holds that under some circumstances a prior oral grant that is confirmed by a later writing becomes valid as of the time of the oral grant. . . .” (citations omitted)). This is especially so when there is no dispute between the conveyor and the conveyee regarding whether a transfer took place, for example when the dispute is between the conveyee and an alleged infringer. See id. (holding that § 204(a)’s writing requirement was satisfied by memorandum executed after litigation had begun, when there was no dispute regarding conveyor’s intent to transfer).
The 1976 Copyright Act provides that only the “legal or beneficial owner of an exclusive right under a copyright [may]… institute an action for any infringement . . . .” 17 U.S.C. § 501(b). The Ninth Circuit interprets this section as requiring the plaintiff to have a “legal or beneficial interest in at least one of the exclusive rights described in § 106.” Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc) (concluding that though § 501(b) does not expressly say that only legal or beneficial owner of exclusive right may sue, Congress’s explicit listing of who may sue should be understood as an exclusion of others); see also Righthaven LLC v. Hoehn, 716 F.3d 1166, 1168 (9th Cir. 2013). Additionally, in order for a plaintiff to be “‘entitled ... to institute an action’ for infringement, the infringement must be ‘committed while he or she is the owner of’ the particular exclusive right allegedly infringed.” Silvers, 402 F.3d at 885 (quoting 17 U.S.C. § 501(b)). As to exclusive rights, see Instruction 17.2 (Copyright—Defined).
Regarding an assignment of royalties, see Broad. Music, Inc. v. Hirsch, 104 F.3d 1163, 1166 (9th Cir. 1997) (holding that copyright owner’s assignment of right to receive royalties is not transfer of ownership under 17 U.S.C. § 205 and does not affect existence, scope, duration or identification of rights under copyright). However, the beneficial owner of the copyright, such as the royalty assignee, may, by means of intervention, protect his or her interests if the legal owner of the copyright fails to do so. See 17 U.S.C. § 501(b); see also Yount v. Acuff Rose-Opryland, 103 F.3d 830, 833-34 (9th Cir. 1996) (involving assignment of royalties).
Regarding a renewal interest in a copyright, see Marascalco v. Fantasy, Inc., 953 F.3d 469, 476 (9th Cir. 1991) (holding that renewal interest in copyright vests in author’s assignees only if author survives to start of renewal term under 17 U.S.C. § 304(a)). A work created on or after January 1, 1978, is protected from its creation for a term consisting of the life of the author and 70 years after the author’s death. 17 U.S.C. § 302(a). In works created prior to January 1, 1978, and still in their first term of copyright, a copyright shall upon renewal endure for the further term of 67 years. 17 U.S.C. § 304(a)(1)(A). See Stewart v. Abend, 495 U.S. 207, 217 (1990). However, if the author dies before that time, the “next of kin obtain the renewal copyright free of any claim founded upon an assignment made by the author in his lifetime. These results follow not because the author’s assignment is invalid but because he had only an expectancy to assign; and his death, prior to the renewal period, terminates his interest in the renewal….” Id.
Revised March 2025
[In this case, the [plaintiff] [defendant] does not claim to be the [author] [creator] [initial owner] of the copyright at issue. Instead, the [plaintiff] [defendant] claims the copyright by virtue of an exclusive license from the work’s [author] [creator] [initial owner] and that the [plaintiff] [defendant] is now the exclusive licensee of the copyright.]
A copyright owner may [transfer] [sell] [convey] exclusively to another person any of the rights comprised in the copyright. [To be valid, the [transfer] [sale] [conveyance] must be in a writing signed by the copyright owner.] The person to whom this right is transferred is called a licensee.
[An exclusive licensee has the rights to exclude others from copying, adapting, distributing, performing, or displaying the work [to the extent of the rights granted in the license]]. An exclusive licensee is entitled to bring an action for copyright infringement of the right licensed.
Comment
The bracketed language in the instruction’s first sentence of the third paragraph (“[to the extent of the rights granted in the license]”) is not necessary when the extent of the license and its applicability to the alleged infringing activity were established in pretrial proceedings. See, e.g., Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1447-48 (9th Cir. 1994).
“A ‘transfer of copyright ownership’ is an … exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright … but not including a nonexclusive license.” 17 U.S.C. § 101.
An exclusive license, other than one granted by operation of law, must be in writing if it was granted after 1978. See P. Goldstein, Goldstein on Copyright § 5.2.1.1 (2016); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 10.03[A][1]. If it was granted prior to 1978, however, an exclusive license may be oral or implied by conduct. See id. at § 10.03[B][1]; Goldstein on Copyright § 5.2.1.2; see also Micro Star v. Formgen, Inc., 154 F.3d 1107, 1113 (9th Cir. 1998); Effects Assocs. Inc. v. Cohen, 908 F.2d 555, 557-58 (9th Cir. 1990) (holding that exclusive licenses, because they transfer copyright ownership, must be in writing). The writing must be signed by the owner of the rights conveyed and be the product of the parties’ negotiations. 17 U.S.C. § 204(a) (requiring that transfers of copyright be in writing); Radio Television Espanola v. New World Entm’t, Ltd., 183 F.3d 922, 926-27 (9th Cir. 1999) (holding that § 204(a) is satisfied by writing demonstrating transfer of copyright, indicating terms of license). “No magic words must be included in a document to satisfy § 204(a). Rather, the parties’ intent as evidenced by the writing must demonstrate a transfer of a copyright.” Id.
“[T]he various rights included in a copyright are divisible and . . . ‘any of the exclusive rights comprised in a copyright . . . may be transferred . . . and owned separately.’” Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996) (quoting 17 U.S.C. § 201(d)(2)). “An exclusive licensee owns separately only the ‘exclusive rights comprised in the copyright’ that are the subject of his license.” Id. at 1197-98 (citation omitted). The owner of any particular exclusive right “is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.” 17 U.S.C. § 201(d)(2). “In other words, . . . each separate owner of a subdivided exclusive right may sue to enforce that owned portion of an exclusive right.” Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 887 (9th Cir. 2005).
Questions regarding the ownership of a copyright are governed by state law in some situations. See Scholastic Entm’t, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 983, 988 (9th Cir. 2003); Rano v. Sipa Press, Inc. 987 F.2d 580(9th Cir. 1993); Aquarian Found., Inc. v. Lowndes, 127 F.4th 814, 822-23 (9th Cir. 2025) (explaining that because the Copyright Act’s “Conditions of Termination” do not apply to non-statutory heirs, the court must turn to state law to fill the gaps for termination of a licensing agreement).
Regarding nonexclusive licenses, see Nimmer §§ 10.03[A][7] and 10.03[B][1]. Nonexclusive licenses differ in many respects from exclusive licenses and raise several unique issues. For example, a nonexclusive license need not be in writing, see Cohen, 908 F.2d at 558, and a nonexclusive licensee cannot bring suit to enforce a copyright, see Righthaven LLC v. Hoehn, 716 F.3d 1166, 1171-72 (9th Cir. 2013) (holding that nonexclusive licensee did not have standing to sue for copyright infringement); Supersound Recordings, Inc. v. UAV Corp., 517 F.3d 1137, 1144 (9th Cir. 2008) (same); see also Nimmer § 10.03[B][1]. Further, a “copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can only sue for breach of contract.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999), implied overruling on other grounds recognized by Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011). “If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement.” Id.
Revised March 2025
You may find that [state name of work] [state specific components of the work] [is] [are] original if [it was] [they were] created:
First, independently by the [work’s] [components’] author, that is, the author did not copy [it] [them] from another work; and
Second, by use of at least some minimal creativity.
[The “original” part of a work need not be new or novel.]
Comment
“Original, as the term is used in copyright, means only that the work was independently created by the author . . . , and that it possesses at least some minimal degree of creativity.”Feist Pubs, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). A work is original if “the author contributed something more than a merely trivial variation, something recognizably his own.” N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992) (citation omitted). The effort involved to create the work is “wholly irrelevant.” CDN, Inc. v. Kapes, 197 F.3d 1256, 1260 (9th Cir. 1999). However, when a work embodies only the minimum level of creativity necessary for copyright, it is said to have “thin” copyright protection,which “protects against only virtually identical copying.” Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003).
Whether a work involves sufficient creativity is a question of fact, see Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850, 851 (9th Cir. 1938) (holding that “question of originality” is “one of fact, not of law”); Paul Goldstein, Goldstein on Copyright,§ 2.2.1 (3d ed. 2023) (“Courts have historically characterized originality as a question of fact.”).
Because “[o]riginality in this context means little more than a prohibition of actual copying,” N. Coast Indus., 972 F.2d at 1033 (citation omitted),“a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying,” Feist, 499 U.S. at 345. The defendant can establish that the plaintiff copied the work (as opposed to independently creating it) in the same manner that the plaintiff proves infringement. See N. Coast Indus., 972 F.2d at 1034. See Instruction 17.5 (Copyright Infringement—Elements—Ownership and Copying).
Facts are not original and, therefore, are non-copyrightable. See Feist, 499 U.S. at 344 (“[T]here can be no valid copyright in facts.”). But a compilation of facts may be entitled to copyright protection if the author’s arrangement or selection of those facts is original. See id. at 348-49; CDN, 197 F.3d at 1259; see also Instructions 17.10 (Copyright Interests—Authors of Collective Works), 17.16 (Compilation).
Revised Dec. 2023
A work is a derivative work if it [recasts,] [transforms,] or [adapts] a preexisting work. The owner of a copyright may exclude others from creating derivative works based on the owner’s copyrighted work. If the owner allows others to create a derivative work based on the preexisting work, the owner retains a copyright in any elements of a derivative work that are [copied] [derived from] the preexisting work. The owner of a copyright in the preexisting work may enforce the right to exclude others from copying elements of the derivative work that were themselves [copied] [derived from] the preexisting work.
The creator of a derivative work may own a copyright in the original aspects of the work that the creator contributed, such as editorial revisions, annotations, elaborations, or other modifications to the pre-existing work, so long as the creator of the derivative work lawfully used the preexisting work and the contributions are more than trivial. The creator of a derivative work that lawfully used the preexisting work may enforce the right to exclude others from copying the original aspects of the derivative work.
You may find that the derivative work is copyrightable if:
First, the preexisting work is copyrightable or was copyrightable at
the time it was created;
Second, the derivative work lawfully uses the preexisting work;
Third, the derivative work includes new material that is independent
of the preexisting work and is itself copyrightable; and
Fourth, the derivative work’s new material is not so minimal as to be
trivial, such that a copyright in the derivative work could prevent the
owner of the copyright in the preexisting work from exercising a right
under copyright law.
A [work] [material] is copyrightable if it is an original work of authorship fixed in any tangible medium of expression.
A derivative work lawfully uses preexisting material if either the copyright holder of the preexisting material authorized the use or the material has entered the public domain.
Comment
A copyright owner has the exclusive right to prohibit or authorize the preparation of derivative works. 17 U.S.C. § 106(2). A derivative work must actually incorporate the copyrighted work, either literally or nonliterally. Oracle Int’l Corp. v. Rimini St., Inc., 123 F.4th 986, 996 (9th Cir. 2024). In Oracle, the court rejected an “interoperability” test for derivative works—if a product can only interoperate with a preexisting copyrighted work, then it must be derivative. “Both the text of the Copyright Act and [Ninth Circuit] case law teach that derivative status does not turn on interoperability, even exclusive interoperability, if the work doesn’t substantially incorporate the preexisting work’s copyrighted material.” Id. “[A] derivative work must actually incorporate [the] copyrighted work, either literally or nonliterally . . . simply being an extension or modification of a copyrighted work without any incorporation is not enough to create a derivative work.” Id.
Revised March 2025
An owner is entitled to copyright protection of a compilation. A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
The owner of a compilation may enforce the right to exclude others in an action for copyright infringement.
Comment
Facts and ideas are not copyrightable, but compilations of facts may be copyrightable even where the underlying facts are not. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991) (holding that factual compilations are sufficiently original to be copyrightable if choices as to selection and arrangement of facts are independently made by compiler); Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”). Copyright in a compilation “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” 17 U.S.C. § 103(b). The term “compilation” includes collective works. See 17 U.S.C. § 101.
For Ninth Circuit cases considering compilations, see Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1146 (9th Cir. 2003) (“[The] mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work of authorship . . . .”); Satava, 323 F.3d at 811 (holding that combination of six unprotectable elements that were “so commonplace in glass-in-glass sculpture and so typical of jellyfish physiology” were not eligible for copyright protection); CDN Inc. v. Kapes, 197 F.3d 1256, 1259-61 (9th Cir. 1999) (examining and reviewing major coin publications to create list of coin prices satisfied requisite level of originality for copyright as compilation).
When a plaintiff alleges infringement of a compilation, it is not enough to show that only part of the work has been copied. “[W]e have repeatedly recognized in this circuit that when dealing with factual compilations, infringement cannot be based on a showing that only a part of the work has been copied. In the context of factual compilations, we have held that infringement should not be found in the absence of “bodily appropriation of expression,” or “unauthorized use of substantially the entire item.” Experian Info. Sols., Inc. v. Nationwide Mktg. Servs. Inc., 893 F.3d 1176, 1186 (9th Cir. 2018) (affirming grant of summary judgment when defendant’s database comprised at most 80 percent of plaintiff’s copyrighted compilation) (quoting Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989)).
Revised Sept 2018
17.17 Copying—Access and Substantial Similarity
Instruction [insert cross reference to the pertinent instruction, e.g., Instruction 17.5] states that the plaintiff has the burden of proving that the defendant copied original elements from the plaintiff’s copyrighted work. The plaintiff can prove that the defendant copied from the work by proving by a preponderance of the evidence that the defendant had access to the plaintiff’s copyrighted work and that there are substantial similarities between the defendant’s work and original elements of the plaintiff’s work] [by proving by a preponderance of the evidence that there is a striking similarity between the defendant’s work and the plaintiff’s copyrighted work]. If the plaintiff fails to prove that the defendant copied the plaintiff’s work, your verdict should be for the defendant.
Comment
Regarding access, substantial similarity, and independent creation, see Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1018 (9th Cir. 1985). See also Instruction 17.14 (Copyright Infringement—Originality), 17.18 (Copyright Infringement—Copying—Access Defined), and 17.19 (Substantial Similarity—Extrinsic Test; Intrinsic Test). The word “copying” is described by the Ninth Circuit as “shorthand” for the various activities that may infringe any of the copyright owner’s “exclusive rights,” which are described in 17 U.S.C. § 106. Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1154 (9th Cir. 2012) (quoting S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 n.3 (9th Cir. 1989)).
If it can be determined that either access or substantial similarity are lacking in a particular case, the remaining prong need not be addressed; failure on either prong is sufficient for failure of the claim. See Gray v. Hudson, 28 F.4th 87, 96 (9th Cir. 2022). “[I]n the absence of any proof of access, a copyright plaintiff can still make out a case of infringement by showing that the songs were ‘strikingly similar.’” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (citing Smith v. Jackson, 84 F.3d 1213, 1220 (9th Cir. 1996), and Baxter v. MCA, Inc., 812 F.2d 421, 423, 424 n.2 (9th Cir. 1987)), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc). “[S]triking similarity shows that the similarities between the two works are due to copying rather than coincidence, independent creation, or prior common source.” Skidmore, 952 F.3d at 1064 (quotation marks, ellipsis, and citation omitted).
Supplemental Instruction
[If the defendant has submitted evidence that a similarity between the infringed and the allegedly infringing work is not due to the defendant’s copying, replace the instruction with the following.]
The plaintiff has the burden of proving that the defendant copied original elements from the plaintiff’s copyrighted work. If the plaintiff shows[proves by a preponderance of the evidence that the defendant had access to the plaintiff’s copyrighted work and that there are substantial similarities between the defendant’s work and original elements of the plaintiff’s work] [proves by a preponderance of the evidence that there is a striking similarity between the defendant’s work and the original elements of the plaintiff’s copyrighted work] then there is a presumption that the defendant copied from the plaintiff’s copyrighted work. If the plaintiff fails to prove that the defendant copied from the plaintiff’s work, your verdict should be for the defendant.
The defendant may rebut the presumption of copying. If you find that the defendant has proved by a preponderance of evidence that the similarities between the defendant’s work and the copyrighted work are due to [alternative case of similarity], your verdict should be for the defendant.
Comment
A presumption of copying arises if the plaintiff proves that the defendant had access to the plaintiff’s work and that there is a substantial similarity between the original elements of the infringed and alleged infringing works,or if there is a striking similarity between the infringed and alleged infringing works that raises the inference of access. Three Boys, 212 F.3d at 486 (“By establishing reasonable access and substantial similarity, a copyright plaintiff creates a presumption of copying.” (citing Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976))). The defendant may rebut the presumption through proof of independent creation. Id.; cf. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971) (“It is true that defendants had access to plaintiff’s [copyrighted] pin and that there is an obvious similarity between plaintiff’s pin and those of defendants. These two facts constitute strong circumstantial evidence of copying. But they are not conclusive, and there was substantial evidence to support the trial court’s finding that defendant’s pin was in fact an independent creation.”) (citations omitted); Skidmore, 952 F.3d at 1064 (holding that “probative or striking similarity shows that the similarities between the two works are due to copying rather than coincidence, independent creation, or prior common source”) (quotation marks, ellipsis, and citation omitted).
Revised March 2024
17.18 Copyright Infringement—Copying—Access Defined
[As part of its burden in Instruction [insert cross reference to the pertinent instruction e.g., Instruction 17.5], the plaintiff must prove by a preponderance of the evidence that [the defendant] [whoever created the work owned by the defendant] had access to the plaintiff’s work.] You may find that the defendant had access to the plaintiff’s work if [the defendant] [whoever created the work owned by the defendant] had a reasonable opportunity to [view] [read] [hear] [copy] the plaintiff’s work before the defendant’s work was created.
Comment
Proof of access requires “an opportunity to view or to copy plaintiff’s work.” See Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1172 (9th Cir. 1977); see also Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1143 (9th Cir. 2009) (requiring “a reasonable possibility, not merely a bare possibility”); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (same), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc).
Supplemental Instruction
[If evidence offered at trial shows various ways of proving access, add the following at the end of the instruction.]
Access may be shown by:
[1.] [a chain of events connecting the plaintiff’s work and the defendant’s opportunity to [view] [hear] [copy] that work [such as dealings through a third party (such as a publisher or record company) that had access to the plaintiff’s work and with whom both the plaintiff and the defendant were dealing]] [or]
[2.] [the plaintiff’s work being widely disseminated] [or]
[3.] [a similarity between the plaintiff’s work and the defendant’s work that is so “striking” that it is highly likely the works were not created independent of one another].
Comment
“Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that the plaintiff’s work has been widely disseminated.” (citation omitted) Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016); see also Three Boys, 212 F.3d at 482 (holding that reasonable access can be shown by a chain of events connecting plaintiff’s work and defendant’s access or by plaintiff’s work being widely distributed, and stating that the widespread dissemination approach is often coupled with a theory of “subconscious copying”); Art Attacks Ink 581 F.3d at 1143-45 (finding no access shown under chain of events or wide dissemination theories); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9th Cir. 1981) (finding access shown by dealings between parties and third party on chain of events theory relating to same subject matter).
As to widespread dissemination, the plaintiff may show “the degree of a work's commercial success and on its distribution through . . . relevant mediums.” Loomis, 836 F.3d at 997; see also Three Boys, 212 F.3d at 484-85 (holding that sufficient evidence supported the jury’s conclusion that plaintiffs failed to prove widespread dissemination of their song when the protected song “never topped the Billboard charts or even made the top 100 for a single week,” “was not released on an album or compact disc until . . . after [defendants] wrote their song,” music experts “testified that they never heard” the protected song, and defendants “produced copies of ‘TV Guide’ from 1966 [the year the protected song was released] suggesting that the television shows playing the song never aired in Connecticut [where defendants lived at the time]”). In addition to raising an inference of access due to widespread dissemination, the plaintiff can raise an inference of access where the allegedly infringed work saturated a relevant market in which both the plaintiff and the defendant participate. See Loomis, 836 F.3d at997; L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 848 (9th Cir. 2012) (holding that “there was a reasonable possibility that Defendants had an opportunity to view and copy [the allegedly infringed] design” where plaintiff’s fabric design “was widely disseminated in the Los Angeles-area fabric industry” over a four-year period and the parties both operated in that market during that period). The mere presence of the plaintiff’s work on a website is insufficient to establish widespread dissemination. See Art Attacks Ink, 581 F.3d at 1145.
As to the plaintiff demonstrating that there is a “striking similarity” between works to support an inference of access, see Three Boys., 212 F.3d at 483 (holding that in absence of any proof of access, copyright plaintiff can still make out case of infringement by showing that songs were “strikingly similar.”
Revised March 2024
Comment
As the Ninth Circuit confirmed in Antonick v. Electronic Arts, Inc., 841 F.3d 1062 (9th Cir. 2016), the court employs a two-part test for determining whether one work is substantially similar to another:
If the extrinsic test is satisfied, the intrinsic test is a matter for the jury. See Corbello, 974 F.3d at 974; Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994). The court must instruct the jury as to: (1) the non-protectable elements of the plaintiff’s work, (2) the appropriate standard (virtually identical or substantially similar), and (3) that the jury may consider the work as a whole. See Apple Comput., 35 F.3d at 1443, 1446; Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 988-89 (9th Cir. 2009). The jury must determine if the ordinary reasonable viewer would believe that the defendant’s work appropriated the plaintiff’s work as a subjective matter. See Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004); Apple Comput., 35 F.3d at 1442; Fisher v. Dees, 794 F.2d 432, 434 n.2 (9th Cir. 1986). Expert testimony is inappropriate to aid the jury in applying the intrinsic test. Olson v. Nat’l Broad. Co., Inc., 855 F.2d 1446, 1449 (9th Cir. 1988); Antonick, 841 F.3d at 1066.
The Committee recommends that the court and counsel specifically craft instructions on substantial similarity based on the particular work(s) at issue, the copyright in question, and the evidence developed at trial. The following cases may provide guidance in formulating substantial similarity instructions in specific subject areas:
Literary or Dramatic Works: Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir. 1990); Sid & Marty Krofft Television Prods. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977) (holding that commercials infringed television production; applying specific criteria to assessment of substantial similarity); see also Corbello v. Valli, 974 F.3d 965, 975 (9th Cir. 2020) (applying extrinsic test for similarity to elements of challenged work that are undisputedly factual); Metcalf v. Bochco, 294 F.3d 1069, 1073-74 (9th Cir. 2002) (applying Shaw factors applied to screenplay for television show); Pasillas v. McDonald’s Corp., 927 F.2d 440, 442-43 (9th Cir. 1991) (noting that Shaw “is explicitly limited to literary works” and Krofft test is still applicable to other than dramatic or literary works).
Musical Compositions: Gray, 28 F.4th at 97 (applying extrinsic test and noting that protection for original expression does not extend to ideas, concepts, common or trite musical elements, or commonplace elements firmly rooted in genre’s tradition) (citing Skidmore, 952 F.3d at 1069)); Swirsky v. Carey, 376 F.3d 841, 848-49 (9th Cir. 2004) (noting factors and constituent elements applicable to “analyzing musical compositions,” while noting that Ninth Circuit has “never announced a uniform set of factors” because “each allegation of infringement will be unique”); Newton, 388 F.3d at 1196 (noting musical elements); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485-86 (9th Cir. 2000) (identifying “areas” of similarity of musical works); Williams, 885 F.3d at 1164 (noting that musical compositions are not “confined to a narrow range of expression”). In Skidmore, 952 F.3d at 1074, a case involving the alleged copyright infringement of a musical composition, the Ninth Circuit, reviewing for plain error, concluded that the district court did not err in omitting a “selection and arrangement” instruction. Such an instruction is appropriate only if the selection and arrangement of the unprotectable elements of a musical figure “is original in some way.” Gray, 28 F.4th at 101 (quoting Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003)).
Choreographic Works: Hanagami v. Epic Games, Inc., 85 F.4th 931, 942-45 (9th Cir. 2023) (explaining that choreography is composed of various elements that may be unprotectable when viewed in isolation, but what is protectable is the choreographer’s selection and arrangement of the work’s elements; and stating that although it is not “necessary to specify a discrete universe of elements from which a choreographic copyright infringement claim can be built,” the district court erred in granting a motion to dismiss without considering “the movement of the limbs, movement of the hands and fingers, head and shoulder movement, and tempo”).
Moveable and Manipulable Sculptural Works: Tangle, Inc. v. Aritzia, Inc., 125 F.4th 991, 996 (9th Cir. 2025) (explaining that a toy manufacturer’s kinetic and manipulable sculptural works were sufficiently “‘fixed’ in a tangible medium” of expression to be entitled to copyright protection, “even when its pose changes,” analogizing the moveable sculptures to dance, movies, and music).
Computer Programs and Similar Technologies: Apple Comput., 35 F.3d at 1445 (involving audiovisual and literary component of computer program); Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1477 (9th Cir. 1992) (“[C]omputer programs are subject to a Shawtype analytic dissection of various standard components, e.g., screens, menus, and keystrokes”); Data, 862 F.2d at 210 (9th Cir. 1988) (involving home-computer karate game); Frybarger, 812 F.2d at 529-30 (involving video game).
Motion Picture, Television Production, or Copyrighted Script: Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624-29 (2010) (involving movie and screenplay); Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076-77 (9th Cir. 2006) (involving screenplay and television series); Rice v. Fox Broad. Co., 330 F.3d 1170, 1177-78 (9th Cir. 2003) (involving video and television specials); Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (involving screenplay and television series); Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985) (involving novel and motion picture); Litchfield v. Spielberg, 736 F.2d 1352, 1356-57 (9th Cir. 1984) (involving musical play and movie).
“Other Than Dramatic or Literary Works”:Malibu Textiles, Inc., v. Label Lane Int’l, Inc., 922 F.3d 946 (9th Cir. 2019) (involving original selection, coordination, and arrangement of floral-pattern-printed fabric);L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 848-52 (9th Cir. 2012) (same); Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 913-14 (9th Cir. 2010) (involving toy dolls); Cavalier v. Random House, Inc., 297 F.3d 815, 826 (9th Cir. 2002) (involving works of visual art); Sid & Marty Krofft Television Prods., 562 F.2d at 1164 (providing dicta concerning application of specific criteria to plaster recreation of nude human figure); Pasillas, 927 F.2d at 442-43 (noting Krofft test applicable to other than dramatic or literary works; using test to assess similarity of Halloween mask and mask used in television commercial).
“Ordinary Observer” Test: Micro Star v. Formgen, Inc., 154 F.3d 1107, 1112 (9th Cir. 1998) (applying ordinary reasonable person standard); see also L.A. Printex Indus., Inc., 676 F.3d at 852 (involving fabric designs); Johnson Controls, 886 F.2d at 1176 n.4 (involving computer software), implied overruling on other grounds recognized by Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011); Data, 862 F.2d at 209-10 (discussing intended audience); Aliotti v. R. Dakin & Co., 831 F.2d 898, 902 (9th Cir. 1987) (involving perception of children); Berkic, 761 F.2d at 1293 (discussing reasonable reader or moviegoer).
Revised March 2025
If you find that [name of direct infringer] infringed the plaintiff’s copyright in [name of allegedly infringed work], you must determine whether [name of alleged vicarious infringer] vicariously infringed that copyright. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:
1. the defendant directly benefitted financially from the infringing activity of [name of direct infringer];
2. the defendant had the right and ability to [supervise] [control] the infringing activity of [name of direct infringer][; and]
[3. the defendant failed to exercise that right and ability.]
If you find that the plaintiff has proved each of these elements, your verdict should be for the plaintiff if you also find that [name of direct infringer] infringed plaintiff’s copyright. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant [name of alleged vicarious infringer].
Comment
Copyright law “allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer, even if the defendant initially lacks knowledge of the infringement.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 n.9 (2005); see also Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (“A defendant is vicariously liable for copyright infringement if he enjoys a direct financial benefit from another’s infringing activity and ‘has the right and ability to supervise’ the infringing activity.” (quoting A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001))).
In certain cases, it may be appropriate to instruct the jury on the meaning of “right and ability to supervise or control” or “financial benefit” for purposes of vicarious infringement. See Napster, 239 F.3d at 1023-24 (holding that defendant’s ability to block or police use of its internet service is evidence of right and ability to supervise); Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 673 (9th Cir. 2017) (detailing elements of vicarious infringement in absence of employer-employee relationship).
Vicarious infringement is most commonly identified as having two elements: the defendant must have had both (1) the “right and ability to supervise the infringing activity” and (2) “a direct financial interest” in the activity. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001); see also VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 745 (9th Cir. 2019). Implicit in the first element is that the defendant could have prevented the infringement but did not. “One . . . infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc., 545 U.S. at 930. “To escape imposition of vicarious liability, the reserved right to police must be exercised to its fullest extent.” A&M Records, Inc, 239 F.3d at 1023.
Right and Ability to Supervise or Control: A defendant’s ability to supervise or control infringing activity is assessed based on the defendant’s actual ability at the time of infringement. Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F3d 788, 805 (9th Cir. 2007) (“[T]he defendant must have the right and ability to supervise and control the infringement, not just affect it . . . .”). To show an ability to supervise infringing conduct, a plaintiff must show that the defendant had the technical ability to identify and remove infringements. VHT, Inc., 918 F.3d at 746 (noting defendant’s “failure to change its operations to avoid assisting [users] to distribute . . . infringing content . . . is not the same as declining to exercise a right and ability to make [third parties] stop their direct infringement.” (quoting Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1175 (9th Cir. 2007))). The ability to exert an “indirect effect on the infringing activity” is not enough. Id.
Direct Financial Benefit: “A financial benefit is not ‘direct’ unless there is a ‘causal relationship between the infringing activity and [the] financial benefit.’” Erickson Prods., Inc. v. Kast, 921 F.3d 822, 829-30 (9th Cir. 2019) (quoting Ellison, 357 F.3d at 1079 (9th Cir. 2004)). A direct infringer’s avoidance of licensing fees “alone” is not a “direct” financial benefit to the vicarious infringer. Id. at 840 (noting defendant benefitted only indirectly from website developer’s avoidance of licensing fees).
Revised June 2019
A defendant may be liable for copyright infringement engaged in by another if [he] [she] [other pronoun] knew or had reason to know of the infringing activity and intentionally [induced] [materially contributed to] that infringing activity.
If you find that [name of direct infringer] infringed the plaintiff’s copyright in [allegedly infringed work], you must determine whether [name of alleged contributory infringer] contributorily infringed that copyright. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence:
First, the defendant knew or had reason to know of the infringing activity of [name of direct infringer]; and
Second, the defendant intentionally [induced] [materially contributed to] [name of direct infringer’s] infringing activity.
[The defendant’s intent to induce the infringing activity must be shown by clear expression of that intent or other affirmative steps taken by the defendant to encourage.]
If you find that [name of direct infringer] infringed the plaintiff’s copyright and you also find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either or both of these elements, your verdict should be for the defendant.
Comment
This instruction is based on Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261-63 (9th Cir. 1996), Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004), and MDY Industries., LLC v. Blizzard Entertainment, Inc., 629 F.3d 928, 937-38 (9th Cir. 2010), amended (Feb. 17, 2011).
This instruction is also supported by the following cases: Erickson Products, Inc. v. Kast,921 F.3d 822, 831 (9th Cir. 2019) (“A party engages in contributory copyright infringement when it ‘(1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.’” (quoting VHT, Inc. v. Zillow Grp., 918 F.3d 723, 745 (9th Cir. 2019))); Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1147 (9th Cir. 2018) (“We have adopted the well-settled rule that ‘[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement.’ Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) (alteration in original) (quoting Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)). Stated differently, ‘liability exists if the defendant engages in personal conduct that encourages or assists the infringement.’”).
In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), the Supreme Court adopted “[t]he rule on inducement of infringement.” The Court held that “one who distributes a device with the object of promoting its use to infringe a copyright, as shown by clear expression or other affirmative steps to foster infringement, is liable for the resulting acts of infringement by third parties.” Id. at 936-37. The Court clarified that, “in the absence of evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device were otherwise capable of substantial noninfringing uses.” Id. at 940 n.12.
In Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013), the Ninth Circuit recognized that, under Grokster, the inducement rule has four elements: “(1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation.” Id. The court explained those elements and clarified that the inducement copyright rule “applies to services available on the internet as well as to devices or products.” Id. at 1033-39; see also Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007) (describing inducement rule and material contribution test as “non-contradictory variations on the same basic test”).
In Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 671 (9th Cir. 2017), the court addressed material contribution to infringement in the online context and explained that “a computer system operator may be liable under a material contribution theory if it has actual knowledge that specific infringing material is available using its systems, and can take simple measures to prevent further” infringement, and yet fails to do so. Id. (internal quotation marks omitted); see also VHT, Inc. v. Zillow Grp., 918 F.3d 723, 745 (9th Cir. 2019) (holding that Zillow’s actions did not constitute “material contribution or inducement” because it had no means to identify the allegedly infringing images uploaded by users and thus did not have “appropriately ‘specific’ information necessary to take ‘simple measures’ to remedy the violation”).
The bracketed language in the jury instruction paraphrases the test for inducement set forth in Grokster, 545 U.S. at 919, 936-37 (2005), and reiterated in Columbia Pictures, 710 F.3d at 1032. The court should include this language if there is a dispute regarding whether the defendant took sufficient action, or any action, demonstrating its intent to encourage infringement. See, e.g., id. at 1035- 36 (“As for the necessary ‘clear expression or other affirmative steps’ evidence indicative of unlawful intent, the most important is Fung’s active encouragement of the uploading of torrent files concerning copyrighted content.”).
Revised Dec. 2023
A “useful article” is something that has an intrinsic use beyond displaying the appearance of the item or conveying information. A useful article, in and of itself, does not enjoy copyright protection. However, the pictorial, graphic, or sculptural features of the design of a useful article are copyrightable if they can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. The “utilitarian aspects” of the article are those aspects that make it useful.
For example, a generic lamp base consisting of a post and wires is not copyrightable because it is a useful article with no separable copyrightable features. But if the lamp base is in the shape of a cat, the cat design itself might be copyrightable, because the cat design of the base can be viewed separately from the lamp and is capable of existing independently of the lamp.
The defendant claims that the plaintiff’s work is not copyrightable because it is a useful article. To prevail on this defense, the defendant must prove by a preponderance of the evidence that the challenged article has an intrinsic use beyond displaying the appearance of the item or conveying useful information.
If the defendant proves this, you must find for the defendant unless the plaintiff proves that the work is copyrightable under the other instructions that I have given you, and proves that:
First, the plaintiff’s work can be imagined as a freestanding two- or three-dimensional pictorial, graphic, or sculptural work separate from the utilitarian aspects of the useful article; and
Second, the plaintiff’s work would be copyrightable under the other instructions I have given you if it were imagined separately from the useful article of which it is a part.
Comment
The elements of this instruction are based on the Supreme Court’s holding in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 424 (2017). The example of the cat lamp is based on Mazer v. Stein, 347 U.S. 201, 202, 214 (1954).
Once the jury has mentally separated the copyrightable from the uncopyrightable aspects of the useful article, the useful article that remains need not continue to be useful for its intended purpose., Star Athletica, L.L.C., 580 U.S. at 420 (stating that statute “does not require the imagined remainder to be a functioning useful article at all, much less an equally useful one”).
Revised Dec. 2023
As codified in the Copyright Act of 1976, the court must analyze [four] non-exhaustive factors in determining whether fair use applies.” McGucken, 42 F.4th at 1157; 17 U.S.C. § 107. The fifth numbered paragraph of this instruction reflects that the elements set forth in the statutory test of fair use in 17 U.S.C. § 107 are not exhaustive or exclusive. See Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir. 2003) (“[W]e may not treat the [fair use] factors in isolation from one another.”), overruling on other grounds recognized by Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013); Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997). In appropriate circumstances, the court may enumerate additional factors. See Campbell v. Acuff Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (considering defendant’s state of mind/good faith as factor).
For an analysis of the fair use factors, see Google LLC, 144 S. Ct. at 1201-08; Campbel, 510 U.S. at 578-94; Harper & Row, 471 U.S. at 560-69; Tresóna, 953 F.3d at 647-52
The Supreme Court and the Ninth Circuit have considered the fair use factors in numerous cases. The following discussion includes a non-exhaustive list of cases that may help analyze the factors.
1. Purpose and Character of the Defendant’s Use, 17 U.S.C. § 107(1). The first factor focuses mainly on the degree to which the use is “transformative,” meaning “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (internal quotation marks, brackets, and citations omitted); see also Google LLC, 141 S. Ct. at 1203 (explaining that “‘transformative’ . . . .describe[s] a copying use that adds something new and important”); Dr. Seuss, Enters., L.P. v. Comicmix LLC, 983 F.3d 443, 445 (9th Cir. 2020) (discussing the benchmarks of transformative use). “Adding informative captions does not necessarily transform copyrighted works.” De Fontbrune, 39 F. 4th at 1225; see Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1176-77 (9th Cir. 2012) (concluding that publisher’s use of newsworthy wedding photographs of celebrities was not fair use because such use was, among other things, minimally transformative and indisputably commercial).
Parody which “needs to mimic an original to make its point,” Campbell, 510 U.S. at 580-81, is regularly held transformative. See, e.g., Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 803 (9th Cir. 2003) (concluding that “transform[ative] associations” with the Barbie doll constituted parody); but see Dr. Seuss, 983 F.3d at 452-53 (holding that infringing use was not parody and not transformative because it did not critique or ridicule the original).
The first factor also considers “whether the use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C.§ 107(1). “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weight against fair use, absent some other justification for copying.” Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1272, 1282 (2023) (holding that commercial licensing to a magazine of an Andy Warhol silkscreen illustration derived from a copyrighted photo weighed against fair use under the “purpose and character” factor of the fair use defense). “The crux of the profit/nonprofit distinction is . . . whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562; see A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (“Commercial use does not require direct financial benefit, such use “weighs against a finding of fair use but is not conclusive”). “For-profit news articles are generally considered commercial uses.” McGucken, 42 F.4th at 1158.
Other cases that analyze the first factor include: VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 743 (9th Cir. 2019) (concluding website’s tagging of photos for searchable functionality was not transformative); Tresóna,953 F.3d at 648 (observing that use of song in show was for “nonprofit educational purposes and the resulting work was transformative”) (internal quotation marks and citation omitted); Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017) (concluding that removing objectionable content from film for streaming to customers is not transformative); Seltzer, 725 F.3d at 1176-77 (finding band’s use of artist’s original work in its four-minute concert video backdrop transformative because original work took on new and different meaning in video); SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1278 (9th Cir. 2013) (stating that use of seven- second television clip that introduces band as “biographical anchor” in musical about band supports finding of fair use); Elvis Presley Enters., 349 F.3d at 629 (“Courts have described new works as ‘transformative’ when works use copyrighted material for purposes distinct from the purpose of original material.”).
2. Nature of Copyrighted Work: The second factor considers “the nature of the copyrighted work.” 17 U.S.C. § 107. This factor “typically has not been terribly significant in the overall fair use balancing.” Dr. Seuss, 983 F.3d at 456 (citation omitted); see also Campbell, 510 U.S. at 586 (considering whether work is factual or creative in nature and whether it was published) (citation omitted); Seltzer, 725 F.3d at 1178 (noting that prior publication by original author tends to support finding of fair use); Napster, 239 F.3d at 1016 (stating that use of copyrighted creative work cuts against fair use finding); Sony Computer Ent. Am. Inc. v. Bleem, 214 F.3d at 1028 (explaining that nature of copyrighted work is most relevant when “the original material and the copy are of a different nature”).
3. Amount and Substantiality of the Portion Used.: The third factor concerns “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This factor considers “the quantitative amount and the qualitative value of the original work used in relation to the justification for that use.” Dr. Seuss, 983 F.3d at 456; see also Campbell, 510 U.S. at 586-88 (explaining importance of quantity of materials used, as well as their quality and importance). “This factor weighs against fair use if the infringer published ‘the heart’ of an ‘individual copyrighted picture’ without justification.” McGucken, 42 F.4d at 1162 (quoting Monge, 688 F.3d at 1178); see Tresóna, 953 F.3d at 651 (noting that although “qualitatively significant” portion of original work was used, because of transformative nature of new material, this factor “did not weigh against fair use”); Seltzer, 725 F.3d at 1178-79 (addressing when original works are copied in full because they are “not meaningfully divisible”); Bleem, 214 F.3d at 1028 (noting that fair use finding is not likely when there is high degree of copying and “essence” of copyrighted work and copy are similar).
4. The Market Effect. The fourth factor concerns the “effect of the use upon the potential market for or the value of the copyrighted work.” 17 U.S.C. § 107(4). This factor includes (1) the “extent of the market harm caused by the particular actions of the alleged infringer,” and (2) “whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original” and the “market for the derivative works.” Campbell, 510 U.S. at 590-91 (citations omitted).
The effectof the defendant’sinfringing work on the marketfor,orvalueof, the plaintiff’s copyrighted workis the mostimportantfairusefactor. Harper & Row, 471 U.S. at 566; SOFA Ent., Inc., 709 F.3d at 1280 (explaining that this factor favors finding of fair use when use “advances [the alleged infringers’] own original creation without any reasonable threat to [the original author’s] business model”); Monge, 688 F.3d at 1181 (emphasizing that potential market exists independent of the copyright owner’s present intent not to publish copyrighted work); Bleem, 214 F.3d at 1026-27 (noting that the market effect “factor may be the most important, [but] all factors must be considered, and the commercial nature of the copies is just one element”; use for comparative advertising can support first fair use factor but negate fourth fair use factor); Dr. Seuss, 109 F.3d at 1403 (balancing public benefit that will result from the defendant’s use against personal gain the copyright owner will receive if use is denied); Triad Sys. Corp., 64 F.3d at 1336-37 (noting that when defendant’s work competes in same market it is less likely fair use).
5. Additional Factors: See Campbell, 510 U.S. at 585 n.18 (considering the defendant’s state of mind and explaining that permission is not necessary if use is fair); Harper & Row, 471 U.S. at 562 (explaining that the propriety of the defendant’s conduct is relevant to the character of the use because fair use presupposes good faith and fair dealing) (quotation marks and citation omitted); Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986) (“courts may weigh ‘the propriety of the defendant’s conduct’ in the equitable balance of a fair use determination” (citation omitted)).
Revised Dec. 2023
The defendant contends that a copyright does not exist in the plaintiff’s work because the plaintiff abandoned the copyright. The plaintiff cannot claim ownership of the copyright if it was abandoned. To show abandonment, the defendant has the burden of proving each of the following by a preponderance of the evidence:
First, the plaintiff intended to surrender [ownership] rights in the work; and
Second, an act by the plaintiff evidencing that intent.
Mere inaction [or publication without a copyright notice] does not constitute abandonment of the copyright; however, [this may be a factor] [these may be factors] for you to consider in determining whether the plaintiff has abandoned the copyright.
If you find that the plaintiff has proved [his] [her] [other pronoun] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instructions on the plaintiff’s theory of infringement], your verdict should be for the plaintiff, unless you find that the defendant has proved each of the elements of this affirmative defense, in which case your verdict should be for the defendant.
Comment
Abandonment is an affirmative defense. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001); Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.21 (9th Cir. 1988). The Ninth Circuit adopted the doctrine of copyright abandonment in Hamptom v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). See Doc’s Dream, LLC v. Dolores Press, Inc., 959 F.3d 357, 362 (9th Cir. 2020).
Abandonment of a right secured by the Copyright Act must be manifested by an overt act indicating an intention to abandon that right. Micro Star v. Formgen, Inc., 154 F.3d 1107, 1114 (9th Cir. 1998). A copyright owner may abandon some rights and retain others. Id. at 1114(holding that license permitting creation of derivative works from software, but also providing that licensees not distribute derivative works commercially, did not abandon copyright holder’s rights to profit commercially from derivative works).
The bracketed portion of the second paragraph pertaining to publication without copyright notice should be used if the copyright infringement action is brought under the 1909 Copyright Act. Under the Copyright Act of 1909, a federal copyright was secured by publishing a work with the proper notice. La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 953 (9th Cir. 1995). Before publication, common law copyright protected a work from the time of its creation. Id.
Under the 1909 Copyright Act, if a work was published without notice, the author (1) failed to obtain a federal copyright, and (2) lost the common law copyright. See Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir. 1996). When a copyright owner loses its rights in its work by publication without proper notice, the resulting loss is an involuntary forfeiture as opposed to abandonment. See William F. Patry, 2 Patry on Copyright, § 5:155 (2023) (“Abandonment refers to deliberate acts taken by the copyright owner to disclaim its interest in a protected work. . . . Forfeiture occurs by operation of law, without regard to the copyright owner’s intent.”); American Vitagraph, Inc. v. Levy, 659 F.2d 1023, 1026-27 (9th Cir. 1981) (citing Nat’l Comics Publ’ns, Inc. v. Fawcett Publ’ns, 191 F.2d 594, 599 (2d Cir. 1951), supplemented sub nom. Nat’l Comics Publ’ns v. Fawcett Publ’ns, 198 F.2d 927 (2d Cir. 1952)).
Revised Dec. 2023
Comment
The Ninth Circuit explicitly adopted copyright misuse as a defense to copyright infringement in Practice Management Information Corp. v. American Medical Association, 121 F.3d 516, 520 (9th Cir. 1997), amended by 133 F.3d 1140 (9th Cir. 1998). “Copyright misuse is an equitable defense to copyright infringement which precludes the copyright holder’s enforcement of its copyright during the misuse period.” Vernor v. Autodesk, Inc., 621 F.3d 1102, 1115 (9th Cir. 2010).The defense applies only when there is an allegation of copyright infringement. Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir. 2005). Although copyrightmisuse precludes enforcement of a copyright during the period of misuse, it does not invalidate the copyright. Prac. Mgmt., 121 F.3d at 520 n.9.
The misuse doctrine “forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office.” Id. at 520 (quoting Lasercomb Am., Inc. v.Reynolds, 911 F.2d 970, 977-79 (4th Cir.1990)). The purpose of the defense is to prevent copyright holders “from leveraging their limited monopoly to allow them control of areas outside the monopoly.” Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1157 (9th Cir. 2011) (quoting A&MRecs., Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001)); see also Prac. Mgmt., 121 F.3d at 520-21 (holding that a copyright holder misused its copyright when it required a licensee to exclusively use the copyright holder’s copyrighted coding system, because that gave the copyright holder a “substantial and unfair advantage over its competitors”).
The contours of the copyright misuse defense are still being defined because courts often do not address the issue when the underlying copyright infringement. claim is unsuccessful. See, e.g., MDY Indus., LLCv. Blizzard Ent., Inc., 629 F.3d 928, 941 (9th Cir. 2010) (declining to address copyright misuse issue because there was no infringement); Vernor, 621 F.3d at 1115 (noting that the district court did not decide copyright misuse because it found no infringement); Sony Comput. Ent., Inc. v.Connectix Corp., 203 F.3d 596, 608 (9th Cir. 2000) (declining to consider copyright misuse defense when the plaintiff failed to show a likelihood of success on the merits of its copyright infringement claim). There is a useful discussion of this affirmative defense in the concurring opinion in OmegaS.A. v. Costco Wholesale Corp., 776 F.3d 692, 699-706 (9th Cir. 2015) (Wardlaw, J., concurring).
The Ninth Circuit has not yet decided whether the equitable defense of copyright misuse should be submitted to a jury or is an issue for the court to decide. The Fifth Circuit appears to permit a jury to decide whether the defense applies. See Alcatel USA, Inc. v. DGI Techs., Inc.,166 F.3d 772, 793-95 (5th Cir. 1999) (concluding that “the district court abused its discretion when it ignored the jury’s finding that [the plaintiff] misused its operating system copyright”).
Revised Dec. 2023
The defendant contends that [he] [she] [other pronoun] is not liable for copyright infringement because the plaintiff granted [him] [her] [other pronoun] an implied license in the plaintiff’s copyrighted work. The plaintiff cannot claim copyright infringement against a defendant who [copies] [distributes] [uses] [modifies] [retains] the plaintiff’s copyrighted work if the plaintiff granted the defendant an implied license to [copy] [distribute] [use] [modify] [retain] the work.
In order to show the existence of an implied license, the defendant has the burden of proving that:
First, the defendant requested that the plaintiff create a work;
Second, the plaintiff made that particular work and delivered it to the defendant; and
Third, the plaintiff intended that the defendant [copy] [distribute] [use] [modify] [retain] the plaintiff’s
work.
If you find that the defendant has proved by a preponderance of the evidence that the plaintiff granted [him] [her] [other pronoun] an implied license to [copy] [distribute] [use] [modify] [retain] the copyrighted work, your verdict should be for the defendant [on that portion of the plaintiff’s copyright infringement claim].
Comment
This instruction is based on Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558-59 (9th Cir. 1990), and Asset Marketing Systems, Inc. v. Gagnon, 542 F.3d 748, 754-57 (9th Cir. 2008). See also U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1019-20 (9th Cir. 2012) (reversing a grant of summary judgment because a reasonable jury could find an implied license).
Although this model instruction accurately captures one recurring set of implied license facts, implied licenses arise in a wide variety of circumstances, including many—such as express contracts that fail because of the statute of frauds or partnership arrangements—for which the elements of an implied license defense will be different.
Implied license is an affirmative defense to copyright infringement. See Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042, 1047 (9th Cir. 2020). When a plaintiff contributes copyrightable work to the defendant in exchange for some benefit (such as a share in partnership profits, a fee, or a salary), a license for the defendant to use the plaintiff’s work may be implied. See U.S. Auto Parts, 692 F.3d at 1019-20 (discussing the existence of an implied license in the context of an employment relationship); Asset Mktg., 542 F.3d at 750, 754-55 (involving an independent contractor relationship); Oddo v. Ries, 743 F.2d 630, 634 (9th Cir. 1984) (involving a partnership relationship). A license is often implied when “without such a license, [the plaintiff’s compensated] contribution . . . would have been of minimal value.” Id.
A license may be implied by the parties’ conduct. See Foad Consulting Grp., Inc. v. Azzalino, 270 F.3d 821, 825 (9th Cir. 2001). An implied license may be unlimited in scope or restricted to certain rights. Compare Asset Mktg., 542 F.3d at 757 (that plaintiff granted defendant “unlimited” implied license “to retain, use, and modify” work), with Oddo, 743 F.2d at 634 (plaintiff granted defendant implied license to use work in a manuscript, but not “in any work other than the manuscript itself”). The defendant bears the burden of proof as to the scope and existence of an implied license. See id. at 634 & n.6.
Revised Dec. 2023
The defendant contends that [he] [she] [other pronoun] is not liable for copyright infringement because the plaintiff granted [him] [her] [other pronoun] an express license to [copy] [distribute] [use] the plaintiff’s copyrighted work. The plaintiff cannot claim copyright infringement against a defendant who [copies] [distributes] [uses] the plaintiff’s copyrighted work if the plaintiff granted the defendant an express license to [copy] [distribute] [use] the work.
To show the existence of an express license, the defendant has the burden of proving that [he] [she] [other pronoun] received an express license to [copy] [distribute] [use] the plaintiff’s copyrighted work.
If the defendant proves this, the burden shifts to the plaintiff to show that the defendant’s [copying] [distribution] [use] of the plaintiff’s copyrighted work exceeded the scope of the license.
[I have separately instructed you on the scope of the license agreement between the parties.]
If you find that the defendant has proved that the plaintiff granted [him] [her] [other pronoun] an express license to [copy] [distribute] [use] the copyrighted work, your verdict should be for the defendant [on that portion of the plaintiff’s copyright infringement claim], unless the plaintiff proves the defendant’s [copying] [distribution] [use] of the plaintiff’s copyrighted work exceeded the scope of the license. If the plaintiff proves this, your verdict must be for the plaintiff.
Comment
“An applicable license may be dispositive of an infringement claim.” Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d 1042, 1051 (9th Cir. 2020). “Anyone who is authorized by the copyright owner to use the copyrighted work in a way specified in [the Copyright Act] . . . is not an infringer of the copyright with respect to such use.” Id. (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984)). “Thus, ‘[t]he existence of a license creates an affirmative defense to a claim of copyright infringement.’” Oracle USA, Inc. v. Rimini St., Inc., 879 F.3d 948, 954 (9th Cir. 2018) (quoting Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1114 (9th Cir. 2000)), rev’d on other grounds, 139 S. Ct. 873 (2019). A claim for copyright infringement fails “if the challenged use of the work falls within the scope of a valid license.” Great Minds v. Office Depot, Inc., 945 F.3d 1106, 1110 (9th Cir. 2019) (citation omitted). But a licensee is liable for infringement if its use of the work “exceeds the scope of the license granted by the copyright holder.” Oracle USA, Inc., 879 F.3d at 954 (quoting LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 2006)).
The trial court should modify this instruction as necessary to reflect the nature of the defendant’s alleged copyright infringement. In a case in which the defendant claims to have acted under an express license, it is likely that the trial court will need to construe the terms of the license for the jury. See, e.g., id. at 955, 958. Federal courts “rely on state law to provide the canons of contractual construction, but only to the extent such rules do not interfere with federal copyright law or policy.” Great Minds, 945 F.3d at 1110 (quoting S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th Cir. 1989)).
Revised Dec. 2023
The defendant contends that [he] [she] [other pronoun] is not liable for copyright infringement for [reselling] [redistributing] a particular copy of the plaintiff’s copyrighted work because the plaintiff sold or otherwise transferred ownership of that copy. The plaintiff may not claim copyright infringement for subsequent distributions of a copy that it sold or otherwise transferred ownership of. [The defendant may invoke this ["first sale"] defense only if [he] [she] [other pronoun] is an owner of a particular copy of the plaintiff’s copyrighted work, and not a licensee.]
If you find that the defendant was an owner of a particular copy of the plaintiff’s copyrighted work and that the plaintiff sold or otherwise transferred ownership of that particular copy, your verdict should be for the defendant on the plaintiff’s copyright infringement claim.
Comment
The first sale doctrine is an affirmative defense to copyright infringement. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908) (articulating first sale doctrine); Vernor v. Autodesk, Inc., 621 F.3d 1102, 1107 (9th Cir.2010). The doctrine "allows owners of copies of copyrighted works to resell those copies," including copies lawfully made abroad, by limiting the copyright holder’s exclusive distribution right to the first sale. Id. at 1106-07; see also Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 529-30 (2013); see also Omega S.A. v. Costco Wholesale Corp., 776 F.3d 692, 695 (9th Cir.2015) (holding that watch manufacturer had no infringement cause of action because its rights to control importation and distribution of its copyrighted work expired after the authorized first sale); UMG Recordings, Inc. v. Augusto, 628 F.3d 1175, 1179 (9th Cir.2011) ("Notwithstanding its distinctive name, the [first sale] doctrine applies not only when a copy is first sold, but when a copy is given away or title is otherwise transferred without the accouterments of a sale.").
The first sale defense is unavailable to those who have only a license to use the copyrighted work. Vernor, 621 F.3d at 1107. For an analysis of the owner versus licensee distinction, see Adobe Systems Inc. v. Christenson, 809 F.3d 1071, 1078 (9th Cir.2015) (analyzing distinction with respect to computer software); UMG Recordings, 628 F.3d at 1180-83 (analyzing distinction with respect to recipients of promotional music CDs); Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1155-56 (9th Cir.2011) (involving computer software); Vernor, 621 F.3d at 1111-12 (involving computer software); and United States v. Wise, 550 F.2d1180, 1190-92 (9th Cir. 1977) (involving motion pictures in the criminal context). The party asserting the first sale defense has the initial burden of proving “ownership through lawful acquisition.” Adobe, 809 F.3d at 1078-79. If the plaintiff contends that the defendant could not have owned the work, then the plaintiff must prove “a license or the absence of a sale.” Id. at 1079.
Revised Dec. 2023
The defendant qualifies as a service provider of network communication services if the defendant:
First, engaged in transmitting, routing, or providing connections for online communication,
between points specified by a user, of material of the user’s choosing, without modification
to the content of the material;
Second, adopted, reasonably implemented, and informed users of a policy to terminate users
who are repeat copyright infringers; and
Third, accommodated and did not interfere with standard technical measures used to
identify or protect copyrighted works.
Comment
Service providers of network communication services are defendants “who act only as ‘conduits’ for the transmission of information,” and do not “select which users will communicate with each other” or perform nonconduit functions. Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1041 (9th Cir. 2013) (citations omitted). This limitation applies whether the nonconduit functions are “automatic or humanly controlled.” Id. at 1042 (citations omitted).
Reasonably Implemented Policy for the Termination of Users Who Are Repeat Infringers: A reasonable policy for the termination of users who are repeat infringers requires the defendant to have a “working notification system, a procedure for dealing with DMCA-compliant notifications, and . . . [to] not actively prevent copyright owners from collecting information needed to issue such notifications.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir. 2007) (collecting cases). However, the notification system does not have to be perfect. Id. at 1110 (concluding that defendant’s infringement log, which “largely kept track” of infringing users despite some omissions, satisfied the reasonably implemented policy requirement). To decide whether a policy was reasonably implemented, the jury may consider the defendant’s response to valid notifications of claimed infringement from the plaintiff and nonparty copyright holders; it may not consider the defendant’s response to invalid notifications of claimed infringement. Id. at 1112-13; see also Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 617-19 (9th Cir. 2018) (holding that the jury could not reasonably conclude the website operator failed to reasonably implement repeat infringer policy when the operator terminated over 1,320 users for alleged infringement and only nine alleged repeat infringers “slipped through”).
Revised Dec. 2023
The defendant contends that the defendant is a service provider of network communication services and therefore is not liable for copyright infringement because the infringement occurred in the context of transitory digital communications. The defendant has the burden of proving the following elements of this defense by a preponderance of the evidence:
First, the defendant is a service provider of network communication services;
Second, the defendant did not initiate or direct the transmission of the material;
Third, the transmission, routing, provision of connections, or storage of the copyrighted material was carried out through an automatic technical process, and the defendant did not select the material;
Fourth, the defendant did not select the recipients of the material except as an automatic response to a request of another person;
Fifth, The defendant did not make the material accessible to anyone other than to anticipated recipients;
Sixth, the defendant did not keep the copyrighted material for longer than is reasonably necessary for the transmission, routing, or provision of connections; and
Seventh, the defendant transmitted the material through the system or network without modifying the content.
If you find that the defendant has proved each of these elements, your verdict should be for the defendant. If, on the other hand, you find that the defendant has failed to prove any of these elements, the defendant is not entitled to prevail on this affirmative defense.
Comment
This instruction is based on the Digital Millennium Copyright Act’s (“DMCA”) safe harbor provision for transitory digital network communications. See 17 U.S.C. § 512(a) and (k). The DMCA safe harbor provisions are affirmative defenses to copyright infringement. Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045,1052 (9th Cir. 2017);Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1039 (9th Cir. 2013). They “provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” Ellison v. Robertson, 357 F.3d 1072, 1076-77 (9th Cir. 2004) (footnotes omitted).
The DMCA was “enacted to foster cooperation among copyright holders and service providers in dealing with infringement on the Internet.” UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1021-22 (9th Cir. 2013) (citing congressional legislative history). It is intended to mediate “competing interests in protecting intellectual property interests and in encouraging creative development of devices for using the Internet to make information available.” Columbia Pictures, 710 F.3d at 1024. Thisdefense can be used by a service provider of network communication services when “the service provider merely acts as a conduit for infringing material without storing, caching, or providing links to copyrighted material.” UMG Recordings, Inc., 718 F.3d at 1019 n.10 (internal quotation marks and citations omitted).
For a definition of a service provider of network communication services, see Instruction 17.27 (Copyright—Affirmative Defense—Service Provider of Network Communications Services Defined). For commentary on a reasonably implemented policy for the termination of users who are repeat infringers, see Instruction 17.27 (Copyright—Affirmative Defense—Service Provider of Network Communications Services Defined).
Kept for No Longer Than Reasonably Necessary for Transmission: A period of fourteen days of temporary storage can qualify as storage for no longer than is reasonably necessary for transmission. Ellison, 357 F.3d at 1081.
Revised Dec. 2023
If the defendant is a service provider and is facing liability for copyright infringement based on system caching of copyrighted material, the defendant is not liable for money damages.
The defendant contends that the defendant is a service provider and is not liable for copyright infringement because the intermediate and temporary storage of copyrighted material occurred during system caching. The defendant has the burden of proving by a preponderance of the evidence that the defendant is eligible to use this defense and that the defense applies.
The defendant is eligible to use the defense of system caching if the defendant:
First, is a service provider of network communication services, online services, or network access;
Second, adopted, reasonably implemented, and informed users of a policy to terminate users who are repeat copyright infringers;
Third, accommodated and did not interfere with standard technical measures used to identify or protect copyrighted works; and
Fourth, designated an agent to receive notifications of claimed infringement, and made the agent’s name, phone number, and email address available on its website and to the Copyright Office.
The defense of system caching applies if:
First, the material was made available online by a person other than the defendant;
Second, the material was not transmitted to, from, or at the request of the defendant;
Third, the storage of the copyrighted material occurred through an automatic technical process;
Fourth, the system caching did not modify the content of the material;
Fifth, the defendant complied with the generally accepted rules concerning refreshing, reloading, or other updating of the material if specified by the person making material available online, unless the rules were used to prevent or unreasonably impair system caching;
Sixth, the defendant did not interfere with the ability for the material to return to the original provider of the information;
Seventh, if access to the material was limited by a condition, the defendant did not allow access to the material unless the requester satisfied that condition.
If you find that the defendant has proved each of these elements, your verdict should be for the defendant. If, on the other hand, you find that the defendant has failed to prove any of these elements, the defendant is not entitled to prevail on this affirmative defense.
Comment
This instruction is based on 17 U.S.C. § 512(b), (c)(3), (i), and (k).
The seventh requirement for valid notification applies only to the system caching affirmative defense. See 17 U.S.C.A. § 512(b)(2)(E). The requirement that the defendant expeditiously remove or disable access to the infringing material upon valid notification applies only if “(i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and (ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.” Id.
For a definition of a service provider of network communication services, see Instruction 17.27 (Copyright—Affirmative Defense—Service Provider of Network Communications Services Defined). For commentary on a reasonably implemented policy for the termination of users who are repeat infringers, see Instruction 17.27 (Copyright—Affirmative Defense—Limitation on Liability for Transitory Digital Network Communications).
[If the defendant received notice of claimed infringement, insert the following before the final paragraph of the instruction.]
[Eighth, the defendant expeditiously removed or disabled access to the infringing material or activity upon receipt of a valid notification of claimed infringement].
A valid notification of claimed infringement is a written communication provided to the defendant’s designated agent and must include:
First, a physical or electronic signature of a person authorized to act on behalf of the copyright owner;
Second, identification of the infringed copyrighted work or a representative list of infringed copyrighted works if there are multiple infringed works at a single online site;
Third, identification of the infringing material or activity, and information reasonably sufficient to permit the defendant to locate the material;
Fourth, information reasonably sufficient to permit the defendant to contact the complaining party;
Fifth, a statement that the complaining party has a good faith belief that the material infringed a copyright;
Sixth, a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner; and
Seventh, a statement confirming that the infringing material has previously been removed from the originating site, or access to it has been disabled, or a court has ordered removal or disabling of access.
If the notification does not meet all the above requirements, then it is invalid and cannot be used as evidence of the defendant’s knowledge of specific infringing activity. The defendant does not have a duty to expeditiously remove or disable access to infringing material or activity if the notice of claimed infringement is invalid.
A copyright holder must meet these formal notification requirements for the notice of infringement to constitute evidence of either subjective or objective knowledge. UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1025 (9th Cir. 2013). A valid notification is a single written communication that substantially complies “with all of § 512(c)(3)’s clauses, not just some of them.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1112-13 (9th Cir. 2007) (citations omitted) (finding that three separate notices, each of which was deficient in some way, cannot be combined to form one valid notice); Luvdarts, LLC v. AT&T Mobility, 710 F.3d 1068, 1072-73 (9th Cir. 2013) (holding that a mere list of plaintiff’s copyrighted works without any further information is not valid notification). The burden of identifying and documenting infringing material rests with the copyright holder, not the defendant. Perfect 10, 488 F.3d at 1113. The requirement that the complaining party have a good faith belief that the material infringed a copyright only requires “subjective good faith.” Rossi v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000, 1005 (9th Cir. 2004). It does not require a copyright owner to “conduct a reasonable investigation into the allegedly offending website.” Id. at 1003.
“[B]efore sending a takedown notification under § 512(c),” “a copyright holder must consider the existence of fair use.” Lenz v. Universal Music Corp., 815 F.3d 1145, 1153 (9th Cir. 2016); see Instruction 17.22 (Copyright—Affirmative Defense—Fair Use).
Revised March 2024
The defendant contends that the defendant is a service provider and therefore is not liable for copyright infringement because the infringement was caused by information residing on the defendant’s systems or networks at the direction of users. The defendant has the burden of proving each element of this defense by a preponderance of the evidence.
The defendant is eligible to use this defense if the defendant:
First, is a service provider of network communication services, online services, or network access;
Second, adopted, reasonably implemented, and informed users of a policy to terminate users who are repeat copyright infringers;
Third, accommodated and did not interfere with standard technical measures used to identify or protect copyrighted works;
Fourth, designated an agent to receive notifications of claimed infringement, and made the agent’s name, phone number, and email address available on its website and to the Copyright Office; and
Fifth, is facing liability for copyright infringement based on information residing on the defendant’s systems or networks at the direction of users.
This defense applies if the defendant:
First, either (a) lacked actual knowledge that the material or activity on the system or network was infringing, or (b) was not aware of facts or circumstances from which specific infringing activity was apparent, or (c) upon obtaining knowledge or awareness acted expeditiously to remove or disable access to the material;
Second, while having the right and ability to control the infringing activity, did not receive a financial benefit directly attributable to the infringing activity; and
Third, upon receiving a valid notification of claimed infringement, acted expeditiously to remove or disable access to the material.
If you find the defendant has proved all of these elements, your verdict should be for the defendant. If, on the other hand, you find that the defendant has failed to prove any of these elements, the defendant is not entitled to prevail on this affirmative defense.
Comment
This instruction is based on 17 U.S.C. § 512(c), (i), and (k).
For a definition of a service provider of network communication services, see Instruction 17.27 (Copyright—Affirmative Defense—Service Provider of Network Communications Services Defined). For commentary on a reasonably implemented policy for the termination of users who are repeat infringers, see Instruction 17.28 (Copyright—Affirmative Defense—Limitation on Liability for Transitory Digital Network Communications). For an instruction on the requirements for a valid notice of claimed infringement, see Instruction 17.29 (Copyright—Affirmative Defense—Limitation on Liability for System Caching).
Liability for Acts of Moderators or Similar Persons: Applying the common law of agency, a website may be liable for the acts of its unpaid moderators or other third parties who select, screen, or curate the site’s content. Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045, 1055(9th Cir. 2017) (holding that “common law agency principles apply to the analysis of whether a service provider like LiveJournal is liable for the acts of [its] moderators”).
Information Residing on Systems or Networks at the Direction of Users: Information residing on systems or networks need “not actually reside on [the defendant’s] servers.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1042-43(9th Cir. 2013) (concluding that storage of “torrent” files that do not contain infringing content themselves, but are used to facilitate copyright infringement, would be “facially eligible for the safe harbor”).
Actual Knowledge of Infringement: Actual knowledge of the specific infringing material is required; general knowledge that the defendant’s services could be used for copyright infringement is insufficient. UMG Recordings, Inc. v. Shelter Cap. Partners, LLC, 718 F.3d 1006, 1022(9th Cir. 2013). Notifications about copyright infringement from a party who is not the copyright holder does not provide actual knowledge of infringement under § 512(c)(1)(A)(i). Id. at 1025.
Awareness of Facts or Circumstances from which Specific Infringing Activity Is Apparent (Also Known As “Red Flag” Knowledge): “Red flag knowledge arises when aservice provider is aware of facts that would have made the specific infringement objectivelyobvious to a reasonable person.” Mavrix, 873 F.3d at 1057 (internal quotation marks and citation omitted). A fact orcircumstance from which infringing activity is apparent must be about a specific instance ofcopyright infringement. Id.; see also UMG Recordings, Inc., 718 F.3d at 1024( concluding that news reports discussing general problem of copyrightinfringement on website and CEO’s acknowledgment of this general problem were not enough tomeet the knowledge requirements under § 512(c)(1)(A)). However, evidence that the defendant actually knew about specific infringingactivity could suffice to make that infringing activity apparent. Columbia Pictures Indus., Inc.,710 F.3d at 1043 (holding that evidence that defendant encouraged and assisted users whowere infringing copyright in “current and well-known” works created “red flag” knowledge ofinfringement). A characteristic of the website itself must be very apparent to qualify as a fact orcircumstance from which infringing activity is apparent. Perfect 10, Inc. v. CCBill LLC, 488F.3d 1102, 1114 (9th Cir. 2007) (holding that website names such as “illegal.net” or“stolencelebritypics.com” do not automatically function as red flags signaling infringement); seealso UMG Recordings, Inc., 718 F.3d at 1022-23 (“[H]osting a category of copyrightable content”with knowledge that “services could be used for infringement is insufficient to constitute a red flag.”). Although notices from noncopyright holders do not convey actual knowledge ofinfringement, they can serve as red flags that make infringing activity apparent. Id. at 1025.
Financial Benefit Directly Attributable to Infringing Activity/Right and Ability to Control: The requirement that the service provider have not received a financial benefit directlyattributable to the infringement activity applies “in a case in which the service provider has the right and ability to control such activity.” 17 U.S.C. § 512(c)(1)(B). To have “the right and ability tocontrol,” the service provider must exert “substantial influence on the activities of users.” UMGRecordings, Inc., 718 F.3d at 1030 (citation omitted). “Substantial influence” may include high levels of controlover the activities of users; “purposeful, culpable expression and conduct”; active involvementby the service provider in the listing, bidding, sale and delivery of items offered for sale; orcontrol of vendor sales through the previewing of products prior to their listing, the editing ofproduct descriptions, or the suggesting of prices. Id. (quoting Viacom Int’l, Inc. v. YouTube, Inc.,676 F.3d 19, 38 (2d Cir. 2012)).
“In determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one.” Mavrix, 873 F.3d at 1059 (9th Cir. 2017) (quoting S. Rep. No. 105-190, at 44 (1998)). The relevant inquiry regarding direct financial benefit is “whether the infringing activity constitutes a draw for subscribers, not just an added benefit.” Perfect 10, 488 F.3d at 1117 (quoting Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004)). A “one-time set-up fee [or] flat, periodic payments” for the service provided does not qualify. Id. at 1118 (citation omitted). “The financial benefit need not be substantial or a large proportion of the service provider’s revenue.” Mavrix, 873 F.3d at 1059 (citation omitted).
Revised Dec. 2023
The defendant contends that the defendant is a service provider and therefore not liable for copyright infringement because the infringement occurred in the context of the defendant’s provision of information location tools, such as a directory, index, reference, pointer, or hypertext link, to refer or link users to infringing material or activity. The defendant has the burden of proving this defense by a preponderance of the evidence.
The defendant is eligible to use this defense if the defendant:
First, is a service provider of network communication services, online services, or network access;
Second, adopted, reasonably implemented, and informed users of a policy to terminate users who are repeat copyright infringers;
Third, accommodated and did not interfere with standard technical measures used to identify or protect copyrighted works;
Fourth, designated an agent to receive notifications of claimed infringement, and made the agent’s name, phone number, and email address available on its website and to the Copyright Office; and
Fifth, is facing liability for copyright infringement for providing information location tools or services.
The defense applies if the defendant:
First, lacked actual knowledge that the material or activity was infringing;
Second, was either (a) not aware of facts or circumstances from which specific infringing activity was apparent, or (b) upon obtaining knowledge or awareness or upon receiving a valid notification of claimed infringement, acted expeditiously to remove or disable access to the material; and
Third, while having the right and ability to control the infringing activity, did not receive a financial benefit directly attributable to the infringing activity.
If you find that the defendant has satisfied these requirements, your verdict should be for the defendant. If, on the other hand, you find that the defendant has failed to prove any of these elements, the defendant is not entitled to prevail on this affirmative defense but may assert other defenses.
Comment
This instruction is based on 17 U.S.C. § 512(d), as well as § 512(c)(2)-(3), (i), and (k).
For a definition of a service provider of network communication services, see Instruction 17.27 (Copyright—Affirmative Defense—Service Provider of Network Communications Services Defined). For commentary on a reasonably implemented policy for the termination of users who are repeat infringers, see Instruction 17.27 (Copyright—Affirmative Defense—Limitation on Liability for Transitory Digital Network Communications). For an instruction on the requirements for a valid notice of claimed infringement, see Instruction 17.29 (Copyright—Affirmative Defense—Limitation on Liability for System Caching). For commentary on actual knowledge of infringement, awareness of facts or circumstances from which specific infringing activity is apparent, and financial benefit directly attributable to infringing activity, see Instruction 17.30 (Copyright—Affirmative Defense—Limitation on Liability for Information Residing on Systems or Networks at Direction of Users).
Information Location Tools: This defense applies only to “infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1116-17 (9th Cir. 2007) (explaining that § 512(d) did not create “blanket immunity” when a defendant provided users with a hyperlink to infringing material but also engaged in other infringing activity).
Revised Dec. 2023
If you find for the plaintiff on the plaintiff’s copyright infringement claim, you must determine the plaintiff’s damages. The plaintiff is entitled to recover the actual damages suffered as a result of the infringement. In addition, the plaintiff is also entitled to recover any profits of the defendant attributable to the infringement. The plaintiff must prove damages by a preponderance of the evidence.
Comment
Give this instruction along with Instructions 5.1 (Damages—Proof), 17.33 (Copyright—Damages—Actual Damages), and 17.34 (Copyright—Damages—Defendant’s Profits).
Under 17 U.S.C. § 504(b), the copyright owner is entitled to recover the actual damages suffered as a result of the infringement, as well as any profits of the infringer that are attributable to the infringement and that are not taken into account in computing the actual damages. See Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 (9th Cir. 2004) (noting additionally that “actual damages must be suffered ‘as a result of the infringement,’ and recoverable profits must be ‘attributable to the infringement’”); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 n.5 (9th Cir. 1985).
Section 504(c)(1) provides that theplaintiffmay“elect,atanytimebeforefinaljudgmentis rendered” whether to seek actual or statutory damages.See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th Cir. 2008); L.A. News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 995 (9th Cir. 1998).If the copyright owner elects to recover statutory damages, the owner cannot also recover actual damages.17 U.S.C. § 504(c)(1); seealsoInstruction17.35(Copyright—Damages—StatutoryDamages);DerekAndrew,528F.3d at 699; Nintendo of Am., Inc. v. Dragon Pac. Int’l, 40 F.3d 1007, 1010-11 (9th Cir. 1994) (explaining punitive purpose of statutory damages and compensatory purpose of actual damages).
When injury is shown, but neither profits nor damages can be proved, statutory damages are mandatory. Russell v. Price, 612 F.2d 1123, 1129-30 (9th Cir. 1979); Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir. 1978). When the copyright owner fails to register its copyright before commencement of the infringement, it can recover only actual damages and profits and cannot seek statutory damages. Derek Andrew, 528 F.3d at 699; Polar Bear Prods., 384 F.3d at 707 n.5.
Revised Dec. 2023
The plaintiff is entitled to recover the actual damages suffered as a result of the infringement. Actual damages mean the amount of money adequate to compensate the copyright owner for the reduction of the fair market value of the copyrighted work caused by the infringement. In determining actual damages, you should consider the following:
1. [The amount a willing buyer would have been reasonably required to pay a willing
seller at the time of the infringement for the actual use made by the defendant of the
plaintiff’s work] [;] [and]
2. [The profits the plaintiff should have received for any sales lost because of the
infringement. Profits are the gross revenue the plaintiff would have made on sales
that did not occur because of the infringement minus additional expenses the plaintiff
would have incurred in making those sales] [;] [and]
3. [Insert any other factors that bear on the plaintiff ’s actual damages].
Comment
Add applicable paragraphs from Instruction 17.34 (Copyright— Damages—Defendant’s Profits).
This instruction is based upon a jury instruction approved by the Ninth Circuit as “properly stat[ing] the law of damages in a copyright infringement suit” and “in line with our circuit’s caselaw.” Wall Data Inc. v. L.A. Cnty. Sheriff’s Dep’t, 447 F.3d 769, 787 (9th Cir. 2006). The circuit has noted that actual damages may be “awarded in the form of lost profits” or may be awarded based on “hypothetical-license damages,” which are determined by “the amount a willing buyer would have been reasonably required to pay a willing seller at the time of the infringement for the actual use made by [the infringer] of the plaintiff’s work.” Oracle Corp. v. SAP AG, 765 F.3d 1081, 1087 (9th Cir. 2014); see also id. at 1088 (explaining that a rule disallowing “hypothetical-license damages . . . could operate unfairly, given the difficulty [the copyright owner] might face in meeting the burden of proof for lost profits and infringer’s profits” (citing On Davis v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir. 2001)). “[T]he market value approach is an objective, not a subjective, analysis.” Jarvis v. K2 Inc., 486 F.3d 526, 534 (9th Cir. 2007) (quoting Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 2002)). Therefore, “[e]xcessively speculative claims of damages are to be rejected.” Id.
This instruction does not address whether the measures of actual damages (as either the plaintiff’s lost profits or the fair market value of the use illegally appropriated by the infringer) are mutually exclusive or additive, nor the danger of double recovery if both measures are presented to the jury.
For commentary on the plaintiff’s right to elect to recover statutory damages instead actual damages and the defendant’s profits, see Instruction 17.35 (Copyright—Damages—Statutory Damages).
Revised Dec. 2023
In addition to actual damages, the plaintiff is entitled to any profits of the defendant attributable to the infringement. You may not include in an award of profits any amount that you took into account in determining actual damages.
You may make an award of the defendant’s profits only if you find that the plaintiff showed a causal [relationship] [nexus] between the infringement and the [profits generated indirectly from the infringement] [defendant’s gross revenue].
The defendant’s profit is determined by [deducting] [subtracting] all expenses from the defendant’s gross revenue.
The defendant’s gross revenue is all of the defendant’s receipts from the [use] [sale] of a [[product] [work]] [[containing or using the copyrighted work] [associated with the infringement]]. The plaintiff has the burden of proving the defendant’s gross revenue by a preponderance of the evidence.
Expenses are all [operating costs] [overhead costs] [and] production costs incurred in producing the defendant’s gross revenue. The defendant has the burden of proving the defendant’s expenses by a preponderance of the evidence.
Unless you find that a portion of the profit from the [use] [sale] of a [product] [work] containing or using the copyrighted work is attributable to factors other than use of the copyrighted work, all of the profit is to be attributed to the infringement. The defendant has the burden of proving the [portion] [percentage] of the profit, if any, attributable to factors other than [copying] [infringing] the copyrighted work.
Comment
In a multi-defendant case, this instruction may need to be tailored according to the defendant to whom it applies. Where there are multiple infringers of a copyright, all infringers are jointly and severally liable for the plaintiff’s actual damages, but each defendant is severally liable for the defendant’s own illegal profits. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 519 (9th Cir. 1985) (citationsomitted).
“In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. § 504(b). The statute “creates a two-step framework for recovery of indirect profits: (1) the copyright claimant must first show a causal nexus between the infringement and the [infringer’s] gross revenue; and (2) once the causal nexus is shown, the infringer bears the burden of apportioning the profits that were not the result of infringement.” Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 711 (9th Cir. 2004); see also id. at 714 n.10 (approving jury instruction stating: “Indirect profits have a less direct connection or link to the infringement. Plaintiff seeks indirect profits in this case. To recover indirect profits, Plaintiff must establish a causal relationship between the infringement and the profits generated indirectly from such infringement.”).
The “fundamental standard” for whether a causal nexus is shown as required for an award of indirect profits is that the plaintiff “must proffer some evidence . . . [that] the infringement at least partially caused the profits that the infringer generated as a result of the infringement.” Polar Bear Prods., 384 F.3d at 711 (alteration in original) (quoting Mackie v. Rieser, 296 F.3d 909, 911 (9th Cir. 2002)) (holding that a plaintiff seeking to recover indirect profits must “formulate the initial evidence of gross revenue duly apportioned to relate to the infringement” (citationsomitted)); see also Mackie, 296 F.3d at 916 (holding that an artist could not recover indirect profits unless he demonstrated with “non-speculative evidence” a causal link between the infringement and subsequent indirect profits, such as how many individuals subscribed to the symphony because the artist’s work appeared on one page of the symphony brochure).
In the Ninth Circuit, the calculation of actual damages under the 1909 Copyright Act differs from that under the 1976 Copyright Act. Prior to 1985, the Ninth Circuit interpreted the 1909 Copyright Act as allowing recovery of only the higher of actual damages or infringer profits. This differed from other circuits, where recovery of both actual damages and the infringer’s profits was allowed. However, in the 1976 Copyright Act, Congress resolved these differing interpretations to allow recovery of both actual damages and the infringer’s profits. See Frank Music Corp., 772 F.2d at 512 & n.5.
A jury instruction on the defendant’s profits must adequately convey the burden of proof on attribution of profit. The copyright owner is required to present proof “only of the infringer’s gross revenue, and the infringer is required to prove . . . deductible expenses” and “what percentage of [the infringer’s] profits” were not attributable to copying” the infringed work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 487 (9th Cir. 2000) (quoting 17 U.S.C. § 504(b)). However, “gross revenue” for purposes of determining indirect profits means “the gross revenue associated with the infringement, as opposed to the infringer’s overall gross sales resulting from all streams of revenue.” Polar Bear Prods., 384 F.3d at 711 n.8 (citations omitted); see also id. at 711 (noting that the Ninth Circuit applies a “rule of reason” so that “the causation element . . . serves as a logical parameter to the range of gross profits a copyright plaintiff may seek”).
Where the defendant’s profits are derived from both infringing and noninfringing activities, not all of the defendant’s profits can be attributed to the infringement. Accordingly, the profits should be apportioned. See Cream Records, Inc. v. Joseph Schlitz Brewing Co., 754 F.2d 826, 828-29 (9th Cir. 1985); Polar Bear Prods., 384 F.3d at 711-12 (“[T]o conclude that a copyright plaintiff need only provide the company’s overall gross revenue, without regard to the infringement, would make little practical or legal sense.”). However, the benefit of the doubt in apportioning profits is given to the plaintiff. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1549 (9th Cir. 1989) (appeal after remand). Precision is not required, as long as a “reasonable and just apportionment” of profits is reached. See Frank Music Corp., 772 F.2d at 518. In the final analysis, “where infringing and noninfringing elements of a work cannot be readily separated, all of a defendant’s profits should be awarded to a plaintiff.” Nintendo of Am., Inc. v. Dragon Pac. Int’l, 40 F.3d 1007, 1012 (9th Cir. 1994) (citation omitted).
For cases providing examples of the calculation of profits, see Polar BearProds.,384F.3dat712-16(upholding an awardofprofitsbasedonexpert testimony of certain sales figures but rejecting an award for enhanced brand prestige); Frank Music Corp., 772 F.2d at 518-19 (discussing the calculation andproofofprofitsattributableto an infringementandholdingthatindirect profitsarerecoverable if they are ascertainable; e.g., the plaintiff couldclaim profits that resultedfromhotelandgamblingoperations if those profits were attributable to an infringingstage show); Cream Records, 754F.2dat 828-29(awardingprofits fromthedefendant’ssaleofbeveragefollowingthedefendant’suseoftheplaintiff’ssongin a commercial); Williams v. Gaye, 895 F.3d 1106, 1129-30 (9th Cir. 2018) (explaining that the defendants “bore the burden of proof” and that the jury was free to apportion more than the percentage estimates of the defendant’s expert, but less than the percentage estimates of the plaintiff’s expert (citation omitted)); and Unicolors,Inc.v.H&MHennes&Mauritz,L.P.,52F.4th1054,1075n.9(9thCir. 2022) (accepting that the plaintiff “satisfied its burden in proving disgorgement damages, even without placing an expert damages witness on the stand” because the “sales price” and “number of units sold” could be used to calculate the infringer’s “gross revenue”), cert. denied, 143 S. Ct. 2583 (2023).
For cases providing examples of the deductions from the defendant’s grossrevenue,seeFrankMusicCorp.,886F.2dat1548(deductingdirectcosts of production from the defendant’s gross profit); Kamar Int’l, Inc. v. Russ Berrie & Co., 752 F.2d 1326, 1332 (9th Cir. 1984) (allowing deduction of overhead when the infringer demonstratedthat it actually assisted production, distribution, or sale of the infringing product); Three Boys Music,212F.3dat487(adopting the specialmaster’srecommendationtoallow nonwillful infringers to deduct income taxes and management fees actually paid on infringing profits, but not on Net Operating Loss Carry- forward (NOL) because NOL did not have a “concrete financial impact”).
Revised Dec. 2023
You may not award as statutory damages less than $750, nor more than $30,000 for each work you conclude was infringed.
[However, if you find the infringement was innocent, you may award as little as $200 for each work innocently infringed.]
[However, if you find the infringement was willful, you may award as much as $150,000 for each work willfully infringed.]
[Instruction[s] [insert number of pertinent instruction, e.g., Instruction 17.36 (Copyright—Damages—Innocent Infringement), Instruction 17.37(Copyright— Damages— Willful Infringement)] will tell you [what constitutes innocent infringement] [and] [what constitutes willful infringement]].
Comment
An infringement is considered innocent when the defendant has proved both of the following elements by a preponderance of the evidence:
First, the defendant was not aware that [his] [her] [other pronoun] acts constituted infringement of the copyright; and
Second, the defendant had no reason to believe that [his] [her] [other pronoun] acts constituted an infringement of the copyright.
Comment
The statutory damage minimum for innocent infringement is $200. 17 U.S.C.§504(c)(2).
“Whether the defendants’infringement was innocent is a factual determination.”See L.A. News Serv. v. Reuters Television Int’l, Ltd., 149 F. 3d 987, 995 (9th Cir. 1998). But even if the trier of fact finds that an infringement was innocent, this finding does not mandate a reduction in the statutory damages.See L.A. News Serv. v. Tullo, 973 F.2d 791, 800 (9th Cir. 1992).
Revised Dec. 2023
An infringement is considered willful when the plaintiff has proved both of the following elements by a preponderance of the evidence:
First, the defendant engaged in acts that infringed the copyright; and
Second, the defendant knew that those acts infringed the copyright, or the defendant acted with reckless disregard for, or willful blindness to, the copyright holder’s rights.
Comment
The statutory damage maximum for willful infringement is $150,000. 17 U.S.C. § 504(c)(2).
Since at least 2008, the Ninth Circuit has recognized that “a finding of ‘willfulness’ . . . can be based on either ‘intentional’ behavior, or merely ‘reckless’ behavior.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citations omitted); see also Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017)(“[T]o prove ‘willfulness’ under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant’s actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the copyright holder’s rights.” (quoting Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 674 (9th Cir. 2012) (brackets in original)); see also Erickson Prods., Inc. v. Kast, 921 F.3d 822, 833 (9th Cir. 2019) (“Negligence is a less culpable mental state than actual knowledge, willful blindness, or recklessness, the three mental states that properly support a finding of willfulness.” (citations omitted)).
To refute evidence of willful infringement, the defendant must “not only establish its good faith belief in the innocence of its conduct, it must also show that it was reasonable in holding such a belief.” Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (holding that a defendant who ignored revocation of its license to a copyrighted work, and continued to use work after revocation, willfully infringed that work). Even if one is notified of an alleged infringement, continued use of a work “does not constitute willfulness so long as one believes reasonably, and in good faith, that he or she is not infringing.” Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221, 1228 (9th Cir. 2012) (citations omitted); see also VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 748-49 (9th Cir. 2019) (concluding that substantial evidence did not support the jury’s finding of willfulness when the alleged infringer took “appropriate responsive measures after receiving” the notice of copyright infringement and the copyright owner refused to come forth with information to show copyright ownership).
A finding of willful infringement may also be relevant to whether the defendant’s income taxes are deductible under 17 U.S.C. § 504(b). See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 487-88 (9th Cir. 2000) (holding in a case involving allocation of defendant’s profits under 17 U.S.C.§ 504(b), that “non-willful infringers” were entitled to deduct from damage assessment income taxes and management fees actually paid); Oracle Am., Inc. v. Google Inc., 131 F. Supp. 3d 946, 949-53 (N.D. Cal. 2015) (providing an overview of Ninth Circuit precedent on whether a willful infringer may deduct expenses under 17 U.S.C.§ 504(b)).
Revised Dec. 2023
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.1_civil_rev_3_2024.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.02_civil_2017.wpd
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.3_civil_rev_3_2025.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.4_civil_rev_3_2024.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.5_civil_rev_3_2025.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.6_civil_rev_3_2025.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.08_civil_2017.wpd
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.09_civil_2017.wpd
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.10_civil_rev_12_2022.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.11_civil_rev_3_2025.docx
[11] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.12_civil_rev_3_2025.docx
[12] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.13_civil_rev_3_2025.docx
[13] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.14_civil_rev_12_2023.docx
[14] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.15_civil_rev_3_2025.docx
[15] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.16_civil_revised_9-2018.wpd
[16] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.17_civil_rev_3_2024_0.docx
[17] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.18_civil_rev_3_2024.docx
[18] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.19_civil_rev_3_2025.docx
[19] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.20_civil_revised_6-2019.wpd
[20] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.21_civil_rev_12_2023.docx
[21] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.21A_civil_rev_12_2023.docx
[22] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.22_civil_rev_12_2023.docx
[23] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.23_civil_rev_12_2023.docx
[24] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.24_civil_rev_12_2023.docx
[25] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.25_civil_rev_12_2023.docx
[26] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.25A_civil_rev_12_2023.docx
[27] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.26_civil_rev_12_2023.docx
[28] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.27_civil_rev_12_2023.docx
[29] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.28_civil_rev_12_2023.docx
[30] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.29_civil_rev_3_2024.docx
[31] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.30_civil_rev_12_2023.docx
[32] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.31_civil_rev_12_2023.docx
[33] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.32_civil_rev_12_2023.docx
[34] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.33_civil_rev_12_2023.docx
[35] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.34_civil_rev_12_2023.docx
[36] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.35_civil_rev_12_2023.docx
[37] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.36_civil_rev_12_2023.docx
[38] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/17.37_civil_rev_12_2023.docx
